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QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF.

The Third Department, reversing Supreme Court, determined there was question of fact whether the county defendants were negligent in failing to determine whether an inmate was violent. Plaintiff was assaulted by the inmate and alleged the county should have reviewed the inmate’s past record of violent behavior:

“Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the [s]tate [or its political subdivisions] owe[] a duty of care to safeguard inmates, even from attacks by fellow inmates” … . This duty of care does not render the custodial entity “an insurer of inmate safety[,] and negligence cannot be inferred merely because an incident occurred” … . The duty owed is instead “limited to providing reasonable care to protect inmates from risks of harm that are reasonably foreseeable, i.e., those that [the custodial entity or its agents] knew or should have known” … . * * *

Correction Law § 500-b (7) (a) states that the reviewing officer “shall exercise good judgment and discretion and shall take all reasonable steps to ensure that the assignment of persons to facility housing units” advances the safety and security of all inmates and that of the facility in general. The statute enumerates a number of factors to consider in that analysis, but an inmate’s history of assaultive behavior or his or her prior prison disciplinary history are not among them … . The statute further lacks a specific requirement that the reviewing officer obtain all records pertaining to an inmate, instead directing a review of whatever “relevant and known” records are “accessible and available” (Correction Law § 500-b [7] [c] [3]). The statute accordingly creates a “possibility of exceptions . . . significant enough to justify a case-by-case determination of negligence without the automatic imposition of negligence under the negligence per se doctrine,” although a failure to obtain specific records could well constitute evidence of negligence in a given case … . Wassmann v County of Ulster, 2016 NY Slip Op 07907, 3rd Dept 11-23-16

 

MUNICIPAL LAW (INMATES, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)/NEGLIGENCE (MUNICIPAL LAW, INMATES, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)/INMATES (MUNICIPAL LAW, NEGLIGENCE, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)/ASSAULT  (MUNICIPAL LAW, NEGLIGENCE, QUESTION OF FACT WHETHER COUNTY NEGLIGENT IN FAILING TO REVIEW INMATE’S PAST RECORD OF VIOLENT BEHAVIOR, INMATE ASSAULTED PLAINTIFF)

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CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined an action alleging negligent maintenance of a sewer system should not have been dismissed. The court noted that the written notice requirement (a common prerequisite for municipal liability) applies to defects in roads and sidewalks, etc. and does not apply to subsurface structures:

It is settled that a municipality is under a continuing duty to maintain and repair its sewage and water systems … , and this duty is independent of the duty not to create a dangerous or defective condition … . “[T]he breach of this ongoing duty is the ‘event’ that forms the basis for the claim” for purposes of General Municipal Law § 50-i … . Thus, defendant’s negligence, if any, in failing to maintain or repair its water and/or sewage system constitutes a continuing wrong that gives rise to a new cause of action for each injury that occurred … . Plaintiff’s recoverable damages, however, are limited “‘to those caused by the alleged unlawful acts sustained within 90 days preceding the date of filing of the notice of claim'” … . 461 Broadway, LLC v Village of Monticello, 2016 NY Slip Op 07905, 3rd Dept 11-23-16

MUNICIPAL LAW (CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED)/NEGLIGENCE (CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED)/SEWER SYSTEMS (CAUSE OF ACTION ALLEGING NEGLIGENT MAINTENANCE OF A SEWER SYSTEM SHOULD NOT HAVE BEEN DISMISSED)

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CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED.

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined petitioner psychiatric hospital did not present sufficient evidence to support an order permitting involuntary treatment of respondent for schizophrenia. The Third Department heard the appeal as an exception to the mootness doctrine (the involuntary treatment order had already expired):

The exception to the mootness doctrine applies where an issue (1) could readily recur, (2) will typically evade review, (3) is of public importance and (4) represents a substantial and novel issue yet to be decided by this Court … . As pointed out in respondent’s brief, there were 322 applications for authorization to forcibly treat patients who are within the Third Department during 2014 — a contention that adequately demonstrates that proceedings of this nature will readily recur. Since the duration of these orders is tied into the treatment of the patient, who may, as here, be discharged before an appeal is even perfected, we agree that these proceedings do typically evade review … . And, certainly, the proceeding is of public importance because it implicates a patient’s “fundamental liberty interest to reject antipsychotic medication” … . * * *

What we find significant and novel here is how that standard is to be met by a petitioner and applied by the trial court with respect to the formulation of a medication treatment plan, and, for that reason, we will address the merits of the appeal .. .

The fundamental flaw established by this record is that the scope of medications authorized by Supreme Court was overbroad — a flaw conceded by petitioner. The order actually authorized the use of 28 various medications, including medications for symptoms and illnesses that respondent did not have. …

This point implicates the secondary problem presented in that Supreme Court failed to make specific findings on the record as to respondent’s capacity and the viability of the treatment plan. Matter of Lucas QQ. (Lucas QQ.), 2016 NY Slip Op 07904, 3rd Dept 11-23-16

 

MENTAL HYGIENE LAW (CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/APPEALS (CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/MOOTNESS DOCTRINE, EXCEPTION TO (APPEALS, CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/INVOLUTARY TREATMENT (MENTAL HYGIENE LAW, CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)

TRANSFERS MADE DURING 60-MONTH LOOK-BACK PERIOD WERE NOT MADE IN ANTICIPATION OF THE FUTURE NEED FOR MEDICAL ASSISTANCE, DETERMINATION OF THE DEPARTMENT OF HEALTH ANNULLED.

The Third Department, reversing the Department of Health, determined petitioner rebutted the presumption certain property transfers made during the 60-month look-back period were motivated by the future need to qualify for medical assistance:

Considering the medical evidence in light of the substantiated testimony that the transfers were made for the purpose of assisting in the purchase of a home for the grandson’s use, as well as the evidence that the transfers took place several years before decedent applied for assistance and that she retained most of her assets thereafter, we find that the presumption was successfully rebutted. The determination by DOH was not supported by substantial evidence and must be annulled … . Matter of Collins v Zucker, 2016 NY Slip Op 07897, 3rd Dept 11-23-16

MEDICAID (TRANSFERS MADE DURING 60-MONTH LOOK-BACK PERIOD WERE NOT MADE IN ANTICIPATION OF THE FUTURE NEED FOR MEDICAL ASSISTANCE, DETERMINATION OF THE DEPARTMENT OF HEALTH ANNULLED)

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INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY.

The Third Department determined the inadvertent recording of a conversation between mother and child in this custody proceeding should not have been admitted in evidence. Although mother testified the recording capture her and the child’s voices, she did not testify the recording had not been altered:

“The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered. Absent such proof, the [witness’s] concession that the voice on the tapes is his or hers and that he or she recalls making some of the statements on the tapes does not exclude the possibility of alteration and, therefore, does not sufficiently establish authenticity to make the tapes admissible” … . The foundation laid for the introduction of the recording into evidence was the mother’s testimony that the telephone call was made by the child using the mother’s cell phone, the voices on the recording were hers and the child’s, she listened to the recording “[q]uite a few” times and her friend, Amanda Coon, was present when the recording was made. After this testimony, Family Court admitted the recording into evidence. The mother’s testimony was insufficient to authenticate the recording because she did not testify as to whether or not the recording was the complete and unaltered conversation between her and the child, and “there was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody” … . Matter of Williams v Rolf, 2016 NY Slip Op 07884, 3rd Dept 11-23-16

FAMILY LAW (INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/EVIDENCE (FAMILY LAW, CUSTODY, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/CUSTODY (EVIDENCE, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/RECORDINGS (FAMILY LAW, CUSTODY, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)

DERIVATIVE NEGLECT FINDING REVERSED.

The Third Department, reversing Family Court, determined the derivative neglect was not supported by the evidence:

Here, the proof relied upon by petitioner to support its claim of derivative neglect — namely, 1999 and 2010 indicated hotline reports involving different children — was insufficient to support a finding of derivative neglect. Neither the 1999 report nor the 2010 report resulted in a finding of neglect against respondent … . Moreover, the conduct that formed the basis for each of the indicated reports failed to demonstrate that respondent’s understanding of the responsibilities accompanying parenthood were fundamentally flawed at the time of this proceeding … . In addition to its remoteness, the 1999 report was made against the biological parents of the child who was the subject of the report, as well as respondent, who was temporarily residing with the biological parents of the child at the age of 18, and did not conclusively establish which of the three adults had engaged in the conduct giving rise to the indicated findings. The 2010 report was indicated against respondent and his then-paramour for inadequate guardianship based on the children witnessing domestic violence, conduct that may not necessarily form the basis for a neglect finding … . Accordingly, inasmuch as petitioner failed to satisfy its burden of proof, Family Court’s finding of neglect cannot stand. Matter of Choice I. (Warren I.), 2016 NY Slip Op 07899, 3rd Dept 11-23-16

FAMILY LAW (DERIVATIVE NEGLECT FINDING REVERSED)/NEGLECT (DERIVATIVE NEGLECT FINDING REVERSED

FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING.

The Third Department, in rejecting father’s request for a transcript of a Lincoln hearing (in a custody matter), explained why children’s testimony in a Lincoln hearing must be kept confidential:

A child’s testimony in a Lincoln hearing in a proceeding pursuant to Family Ct Act article 6 is not akin to the testimony that may be taken from a child in proceedings pursuant to Family Ct Act article 10. In an article 10 proceeding, an adversarial relationship may exist between the child and the accused parent. As the child’s testimony may be the sole basis for a finding of abuse or neglect, the parent’s due process rights are implicated. Although there are circumstances in which a child’s testimony in such a proceeding may be obtained in camera or outside the presence of the respondent parent, this must be carefully balanced with the rights of the accused parent … .

By clear contrast, in a Family Ct Act article 6 proceeding, in which a Lincoln hearing may be conducted, such a hearing serves entirely different, nonadversarial purposes, and a parent’s constitutional rights are not implicated. The purpose of a Lincoln hearing is not primarily evidentiary; it is instead to assist the court in making the determination of what serves the best interests of the child. The Lincoln hearing is allowed as a manner of directly ascertaining the child’s wishes and may also serve to corroborate information that has been adduced on the record during the course of the fact-finding hearing … .

“[T]he right to confidentiality during a Lincoln hearing belongs to the child and is superior to the rights or preferences of the parents” … . Matter of Heasley v Morse, 2016 NY Slip Op 07883, 3rd Dept 11-23-16

 

FAMILY LAW (CUSTODY, FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING)CUSTODY (LINCOLN HEARING, FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING)/LINCOLN HEARING (CUSTODY,  FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING)

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JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESERVED THE ISSUE FOR APPEAL.

The Third Department, reversing defendant’s conviction, determined the jury should have been instructed a witness (Perkins) was an accomplice as a matter of law. The defendant was charged and convicted of tampering with evidence (attempting to dispose of a jacket allegedly worn when defendant committed murder). It was alleged defendant instructed Perkins to get rid of his boots. The court noted that defendant’s request for the instruction, made during deliberations in response to a jury note, preserved the issue for appeal:

… [I]t is well settled that, “to be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crime[] for which the defendant is on trial” … . Thus, “a ‘witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he [or she] participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged'” … .

Perkins’ testimony established that she picked defendant up at the same location that the jacket was later found and she subsequently disposed of defendant’s boots pursuant to his direction. In addition, she was arrested the same day as defendant, was charged with a felony, entered into a cooperation agreement with the People and, pursuant to that agreement, pleaded guilty to a misdemeanor in exchange for her truthful testimony against defendant. When defendant requested the accomplice charge, he stated that Perkins had pleaded guilty to “obstructing governmental administration . . . in exchange for not being prosecuted for tampering.” In light of this, we find that Perkins was an accomplice as a matter of law “since [s]he could have been (and was) charged with a crime ‘based upon some of the same facts or conduct’ upon which the charge[] against defendant [was] based” … . People v Whyte, 2016 NY Slip Op 07880, 3rd Dept 11-23-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/APPEALS (CRIMINAL LAW, REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)

DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED.

The Third Department determined the contract between plaintiff contractor and property-owner defendant was a design specification contract, as opposed to a performance specification contract. Therefore plaintiff contractor could not be held responsible for defects in materials, methods or design, which were the responsibility of the property owner:

In contrast to a performance specification contract, which affords a contractor the freedom to choose the materials and methods employed to achieve a specified result, a design specification contract requires a contractor to use the materials, methods and design dictated by the owner, without bearing any “responsibility if the design proves inadequate to achieve the intended result” … . In other words, when there is a design specification contract, a contractor follows the architectural plans and specifications provided by an owner, and the contractor will not be responsible for the consequences of defects in such plans and specifications or be prevented from recovering contractually-agreed upon payments for work completed in compliance with them … . Whether a construction contract is one of performance or design specification turns on the language of the contract as a whole, with consideration given to factors such as “the nature and degree of the contractor’s involvement in the specification process, and the degree to which the contractor is allowed to exercise discretion in carrying out its performance” … . CGM Constr., Inc. v Sydor, 2016 NY Slip Op 07895, 3rd Dept 11-23-16

CONTRACT LAW (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)/DESIGN SPECIFICATION CONTRACT (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)/PERFORMANCE SPECIFICATION CONTRACT (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)/CONSTRUCTION CONTRACTS (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)

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FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

The Third Department determined, under the facts, defendant’s counsel was ineffective in failing to move to suppress defendant’s statement, which was made after 26 hours of interrogation:

… “[C]ounsel had everything to gain and nothing to lose by moving to suppress the [oral statements]” … . This is not to say that counsel must always seek to suppress evidence, and we reiterate that counsel is not ineffective for failing to make meritless motions … . Under the circumstances of this case, however, had counsel taken steps to suppress statements from the interrogation, the potential upside would have been the exclusion of the inconsistent statements … . Another potential gain would have been a basis to exclude the seized physical evidence obtained by the search warrants inasmuch as these warrants were secured, in part, by information obtained from defendant’s interrogation … . Indeed, with respect to this physical evidence, counsel recognized that, by not seeking to suppress the physical evidence on which blood had been found, he had to explain the blood’s presence to the jury. He further admitted that the People’s case would have been weaker had this physical evidence been excluded. While we do not pass on whether counsel would have been ultimately successful in suppressing either defendant’s oral statements or the seized physical evidence, we do conclude that a colorable basis existed for seeking suppression. Given the potential benefit in doing so, we discern no strategic or legitimate reason to let any of this crucial evidence come in unabated at trial … . People v Zeh, 2016 NY Slip Op 07881, 3rd Dept 11-23-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)

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