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ORDER WHICH IS NOT ISSUED PURSUANT TO A MOTION ON NOTICE IS NOT APPEALABLE, A MOTION TO VACATE IS THE PROPER PROCEDURE.

 

The Third Department, reversing Supreme Court, noted that an order which is not issued pursuant to a motion on notice is not appealable. The proper procedure is to move to vacate the order and, if the motion is denied, appeal the denial:

… [P]laintiff followed the appropriate procedure in moving to vacate the … order. Contrary to Supreme Court’s determination, plaintiff could not have challenged the order by taking a direct appeal. As the order was made in response to plaintiff’s letter and did not decide a motion made upon notice, it was not appealable as of right (see CPLR 5701 [a] [2]…). Such an order is properly challenged by moving on notice for vacatur, as plaintiff did here, and then by taking an appeal as of right if the requested relief is denied (see CPLR 5701 [a] [3]…). Thus, the court should have addressed the merits of plaintiff’s motion to vacate the … order, and the application should not have been denied based upon the standards applicable to motions pursuant to CPLR 5015 and 2221. Novastar Mtge., Inc. v Melius, 2016 NY Slip Op 08928, 3rd Dept 12-29-16

 

ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS.

The Third Department, reversing Supreme Court, determined defendant did not demonstrate plaintiffs’ attorney, Schultz, should be disqualified based upon a conflict of interest. Plaintiffs, in this motorcycle accident case, were initially represented by a law firm (HHK) which had previously represented defendant. Schultz, who was not part of HHK, was acting as “co-counsel” for plaintiffs, working with an HHK partner, at the time HHK was disqualified. After analyzing the facts, the Third Department found that Schultz was not “associated” with HHK within the meaning of the relevant Rules of Professional Conduct:

The Rules of Professional Conduct prohibit attorneys who are “associated in a firm” from representing a client when a conflict of interest would preclude any one of them from doing so if he or she were practicing alone … . The Rules of Professional Conduct do not define the phrase “associated in a firm,” but it is well established that its meaning extends beyond partners and associates who are employed by the same firm and includes attorneys with “of counsel” relationships … . However, not every lawyer who has any connection or relationship with a firm is considered to be “associated” with that firm for the purpose of imputing a conflict of interest … . Whether an attorney is considered to be “associated in a firm” … is a factual analysis that turns on whether the attorney’s relationship with the firm is sufficiently “close, regular and personal” … .

“Because disqualification can affect a party’s federal and state constitutional rights to counsel of his or her own choosing, the burden is on the party seeking disqualification to show that it is warranted” … . We are unpersuaded that this “heavy burden” was satisfied here … . Kelly v Paulsen, 2016 NY Slip Op 08920, 3rd Dept 12-29-16

 

ATTORNEYS (ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS)/CONFLICT OF INTEREST (ATTORNEYS, ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS)

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PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED.

The Third Department, in a full-fledged opinion by Justice Peters, determined certain causes of action in this medical malpractice suit should have been allowed to go to the jury. Defendant’s motion for a directed verdict should not have been granted. Most of the opinion is fact-generated and cannot be summarized here. The law surrounding a directed verdict in this context, including the applicability of the doctrine of res ipsa loquitur, was explained. A plaintiff is not required to eliminate all other possible causes of injury to make out a prima facie case:

A directed verdict is only appropriate “when, viewing the evidence in a light most favorable to the nonmoving part[y] and affording such part[y] the benefit of every inference, there is no rational process by which a jury could find in favor of the nonmovant[]” … . “[A] plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury” … . “[T]o establish proximate causation, the plaintiff must demonstrate that the defendant’s deviation from the standard of care was a substantial factor in bringing about the injury” … . A plaintiff in a medical malpractice action may also rely on the doctrine of res ipsa loquitur … , which “permits the jury to infer negligence and causation sufficient to establish a prima facie case based on circumstantial evidence” … . “Notably, a plaintiff is not required to eliminate all other possible causes of the injury in order to establish a prima facie case” of medical malpractice … . * * *

“Whether or not res ipsa loquitur was applicable here, plaintiff presented sufficient evidence of negligence to go to the jury” on two of her three theories of liability … . Upon the evidence submitted, Supreme Court properly rejected plaintiff’s first theory of liability as a matter of law at the close of plaintiff’s proof, yet provided no explanation for dismissing the entire complaint, and we can perceive none under the circumstances of this case given the existence of two viable and independent theories of liability that were supported by sufficient trial proof … . Majid v Cheon-Lee, 2016 NY Slip Op 08572, 3rd Dept 12-22-16

 

NEGLIGENCE (PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (DIRECTED VERDICT, MEDICAL MALPRACTICE, PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)/DIRECTED VERDICT (MEDICAL MALPRACTICE, PLAINTIFF NEED NOT ELIMINATE ALL OTHER POSSIBLE CAUSES OF INJURY TO MAKE OUT A PRIMA FACIE CASE OF MEDICAL MALPRACTICE, MOTION FOR A DIRECTED VERDICT SHOULD NOT HAVE BEEN GRANTED)

PILOTS AND SKYDIVING INSTRUCTORS WERE EMPLOYEES ENTITLED TO WORKERS’ COMPENSATION INSURANCE.

The Third Department determined a stop-work order was properly issued against a skydiving company for failure to provide workers’ compensation insurance to its pilots and skydiving instructors. The owner of Saratoga Skydiving, Rawlins, argued that the pilots and jump instructors were independent contractors, not employees:

… [W]e find that substantial evidence supports the decision that Saratoga Skydiving, which is controlled, owned and operated by Rawlins, is required to maintain workers’ compensation coverage for its pilots and jump instructors because they are employees. Foremost, considering the relative nature of their work, the pilots and jump instructors are indispensable and integral to Saratoga Skydiving’s business of offering skydiving experiences to clients … . Further, Rawlins supplied all of the equipment, including the planes and parachutes through companies solely owned and controlled by him … . He also exercised sufficient control over the work, scheduling and services provided on behalf of Saratoga Skydiving, selected who to hire for each jump and determined whether they were sufficiently efficient to be paid or should be discharged. Matter of Saratoga Skydiving Adventures v Workers’ Compensation Bd., 2016 NY Slip Op 08575, 3rd Dept 12-22-16

WORKERS’ COMPENSATION LAW (PILOTS AND SKYDIVING INSTRUCTORS WERE EMPLOYEES ENTITLED TO WORKERS’ COMPENSATION INSURANCE)/SKYDIVING (WORKERS’ COMPENSATION LAW, PILOTS AND SKYDIVING INSTRUCTORS WERE EMPLOYEES ENTITLED TO WORKERS’ COMPENSATION INSURANCE)

BRAND AMBASSADOR NOT AN EMPLOYEE.

The Third Department determined a brand ambassador was not an employee of Attack, a marketing outfit that hired ambassadors to promote particular products at events:

Here, the record evidence reflects that Attack retained little or no control over the means or results of the work performed by claimant and the other brand ambassadors. Although Attack required claimant to fill out a profile page and provide certain personal information and work experience, Attack did not interview or audition claimant, nor did it conduct a background check. Significantly, pursuant to the written agreement that claimant executed with Attack, the rate of pay of compensation, as well as the nature and duration of the services that claimant would provide, were dictated by the clients and not Attack. Similarly, Attack did not provide any training, supervision or materials and did not establish claimant’s work schedule. Nor did Attack provide claimant with any benefits, and claimant was not paid until the client paid Attack. Although claimant could not directly solicit work from Attack’s clients, he was also free to work as a brand ambassador for other companies. Matter of Burgess (Commissioner of Labor), 2016 NY Slip Op 08410, 3rd Dept 12-15-16

UNEMPLOYMENT INSUREANCE (BRAND AMBASSADOR NOT AN EMPLOYEE)/BRAND AMBASSADOR (UNEMPLOYMENT INSURANCE, BRAND AMBASSADOR NOT AN EMPLOYEE)

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PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING.

In an abandonment proceeding, Family Court erred when it would not allow Facebook messages between mother and child into evidence. The Third Department determined a proper foundation for the Facebook messages had been laid. The messages were crucial to mother’s attempt to demonstrate she had maintained contact with her child:

A recorded conversation — such as a printed copy of the content of a set of cell phone instant messages — may be authenticated through, among other methods, the “testimony of a participant in the conversation that it is a complete andaccurate reproduction of the conversation and has not been altered” … . Notably, “[t]he credibility of the authenticating witness and any motive she [or he] may have had to alter the evidence go to the weight to be accorded this evidence, rather than its admissibility” … . Respondent testified that she was present when her counsel printed the Facebook messages at his office, and that she reviewed the entire document to ensure that it was a full and complete copy. The … stipulation and respondent’s testimony, when combined with her adult son’s testimony confirming that he had provided respondent with his account information, password and permission to use the account for communication with the child, constituted a sufficient foundation for the admission into evidence of the printed messages and her related testimony … .

By erroneously precluding this proffered evidence, Family Court deprived respondent of her due process right to a full and fair opportunity to be heard. In a proceeding to terminate parental rights “the court is obliged to ensure that the proceeding is fair and that due process is afforded to an individual whose parental rights may be terminated” … . The frequency and content of these Facebook communications are relevant in determining whether respondent initiated or maintained substantial contact with the child during the statutory period … .  Matter of Colby II. (Sheba II.), 2016 NY Slip Op 08402, 3rd Dept 12-15-16

 

FAMILY LAW (PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/ABANDONMENT (FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/EVIDENCE (FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/FACEBOOK MESSAGES (FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)/RECORDED CONVERSATION (FACEBOOK MESSAGES, FAMILY LAW, PROPER FOUNDATION HAD BEEN LAID, FACEBOOK MESSAGES BETWEEN MOTHER AND CHILD SHOULD HAVE BEEN ALLOWED IN EVIDENCE IN THIS ABANDONMENT PROCEEDING)

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HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD.

The Third Department determined a hearing should have been held on a birth parent’s petition to enforce a postadoption agreement which allowed visitation by the parent:

Family Court erred in dismissing the petition without an evidentiary hearing. Pursuant to Domestic Relations Law § 112-b (4), birth parents and adoptive parents may enter into a legally enforceable agreement regarding postadoption contact that may thereafter be enforced by filing a petition in Family Court … . Enforcement of a postadoption contact agreement, however, “will only be ordered if it is determined to be in the child’s best interests” … , and “[a]n evidentiary hearing is generally necessary to determine what is in the best interests of the child” … .

Here, while there were three appearances in Family Court on the petition at which the interested parties made factual representations, primarily through counsel, and legal arguments on the merits of the petition, no testimony was taken and no documentary evidence was admitted for consideration. The child’s adoptive parents and the attorney for the child opposed enforcement of the postadoption contact agreement and any contact between the child and petitioner based upon, among other factors, an alleged multi-year lapse in contact between petitioner and the child. The information submitted to the court raised factual questions regarding whether visits with petitioner would be in the child’s best interests or detrimental to those interests, necessitating an evidentiary hearing on that determinative issue … .

Further, the adoptive parents are persons whose interests may be adversely or inequitably affected by an order enforcing the postadoption contact agreement and, therefore, they should have been named as parties … . Matter of Lynn X. (Joseph W.), 2016 NY Slip Op 08415, 3rd Dept 12-15-16

 

FAMILY LAW (HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)/POSTADOPTION AGREEMENT (HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)/VISITATION (FAMILY LAW, HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)/ADOPTION (POSTADOPTION AGREEMENTS, HEARING SHOULD HAVE BEEN HELD ON BIRTH PARENT’S PETITION TO ENFORCE A POSTADOPTION AGREEMENT ALLOWING THE BIRTH PARENT’S VISITATION WITH THE CHILD)

HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION.

The Third Department determined the hearing officer’s refusal to call a witness requested by the inmate required annulment:

Petitioner contends, among other things, that he was improperly denied the right to call as a witness an inmate who allegedly overheard a conversation between petitioner and the author of the misbehavior report establishing that the author lied about seeing petitioner place drugs on the food tray. According to petitioner, during this conversation the correction officer admitted that he reported that he saw petitioner put the drugs in the food tray in order to “cover his ass” after being advised to do so by another correction officer. At the hearing, petitioner maintained that the verbal exchange between the two officers revealing that the author was advised to make this misrepresentation was captured on a videotape of the area outside the observation room. When the videotape was played at the hearing, however, the audio was not working. Consequently, the only evidence that could potentially corroborate petitioner’s defense was the testimony of the other inmate.  Matter of McFarlane v Annucci, 2016 NY Slip Op 08432, 3rd Dept 12-15-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION)

SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED.

The Third Department upheld the zoning board’s (ZBA’s) determination that the application for the nonconforming use of the property as a boarding house was properly denied. There was evidence that the initial nonconforming use was a nursing home, not a boarding house. The court noted that Supreme Court, which affirmed on different grounds, should not have substituted its own judgment for that of the board. The court further explained the criteria for allowing nonconforming use of property:

Supreme Court, apparently rejecting the ZBA’s conclusion that the property was a nursing home at the time that the zoning law was enacted in 1963, independently determined that the property was used as a boarding house in 1963, but that its current use as a boarding house was nonetheless a nonconforming use because its “ownership, occupancy and usage . . . [was] far removed from what it was in 1963.” This was improper. A reviewing court cannot, as the court did here, “search the record for a rational basis to support [an administrative agency’s] determination, substitute its judgment for that of the [agency] or affirm the underlying determination upon a ground not invoked . . . in the first instance” … . …

In recognition of the “undue financial hardship that immediate elimination of nonconforming uses would cause to property owners,” nonconforming uses that predate the enactment of a zoning ordinance are constitutionally protected and will grudgingly be permitted to continue notwithstanding the contrary law of the ordinance … . However, “[t]he law . . . generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination” … . A preexisting nonconforming use is “closely restricted” such that it cannot be restored after substantial damage or conversion to a different nonconforming use and may be deemed abandoned following substantial discontinuation … . Matter of Tri-Serendipity, LLC v City of Kingston, 2016 NY Slip Op 08292, 3rd Dept 12-8-16

 

ZONING (SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)/NONCONFORMING USE (ZNONING, SUPREME COURT CANNOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE ZONING BOARD, EVEN IN AFFIRMING THE BOARD’S DETERMINATION, CRITERIA FOR ALLOWING THE CONTINUATION OF A NONCONFORMING USE EXPLAINED)

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DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING.

The Third Department, affirming Supreme Court, determined the deposition of the town tax assessor was properly allowed in this proceeding challenging a tax assessment of a golf course as “selective reassessment:”

“A property owner may challenge an assessment pursuant to RPTL article 7 on several grounds, including that the assessment is excessive, unequal or unlawful” … . Furthermore, “[i]t is well settled that a system of selective reassessment that has no rational basis in law violates the equal protection provisions of the constitutions of the United States and the State of New York” … .

“[D]iscovery in a RPTL article 7 proceeding is governed by CPLR 408, pursuant to which trial courts have broad discretion in directing the disclosure of material and necessary information” … . The trial court’s decision to compel discovery is accorded deference on appeal and should not be disturbed absent an abuse of discretion as a matter of law … . Additionally, to obtain discovery, a party must submit an affirmation showing “a good faith effort to resolve the issues raised by the [discovery] motion” or indicating “good cause” why no communications occurred between the parties in this regard (22 NYCRR 202.7 [a] [2]; [c]…). Matter of City of Troy v Assessor of The Town of Brunswick, 2016 NY Slip Op 08280, 3rd Dept 12-8-16

REAL PROPERTY TAX LAW (DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING)/CIVIL PROCEDURE (REAL PROPERTY TAX LAW, DEPOSITION OF TOWN ASSESSOR PROPERLY ALLOWED IN THIS SELECTIVE REASSESSMENT PROCEEDING)

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