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MOTHER ENTITLED TO HEARING ON HER PRO SE PETITION TO MODIFY A CUSTODY AWARD; FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER MOTHER’S VISITATION; ATTORNEY SHOULD HAVE BEEN APPOINTED FOR THE CHILDREN.

The Third Department, reversing Family Court, determined mother was entitled to a hearing on her pro se petition to modify the award of custody to father. The Third Department also noted that the court should not have delegated to father complete authority to control visitation with mother, and the court should have appointed an attorney for the children. With respect to the need for a custody-modification hearing and the visitation issue, the Third Department wrote:

As the party seeking to modify an existing custodial arrangement, the mother was required to demonstrate, as a threshold, that “there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . The mother's petition, filed pro se, “should be construed liberally when considering whether she sufficiently alleged a change in circumstances” …, and she should be accorded “the benefit of every favorable inference” … . “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests” … . * * *

With regard to the mother's request for visitation, there is a “presumption that visitation with the noncustodial parent is in the chil[ren]'s best interests” … and, “unless visitation is inimical to the [children's] welfare, Family Court is required to structure a schedule which results in frequent and regular access by the noncustodial parent” … . The record before us contains virtually no factual background information and, as such, does not disclose whether the denial of all visitation to the mother “was based [up]on compelling reasons” or if “visitation would be detrimental or harmful to the child[ren]'s welfare” … . While we express no opinion on the propriety of such visitation, we also note that the court should not have delegated to the father complete authority to determine whether there should be any visitation between the mother and children and under what conditions such contact should occur and, upon remittal, there must be a determination in this regard … . Matter of Harrell v Fox, 2016 NY Slip Op 01534, 3rd Dept 3-3-16

FAMILY LAW (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/FAMILY LAW (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)/FAMILY LAW (ATTORNEY SHOULD HAVE BEEN APPOINTED FOR CHILDREN IN MODIFICATION OF CUSTODY PROCEEDING)/CUSTODY (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/VISITATION (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)

HEARING OFFICER DID NOT ADDRESS PETITIONER’S MENTAL HEALTH STATUS, DETERMINATION ANNULLED.

The Third Department annulled the disciplinary determination because the hearing officer made no effort to ascertain the testimony of a mental health clinician or therapist (outside the presence of petitioner) after the therapist called by the petitioner refused to testify:

 

…[P]etitioner’s mental health status was at issue and the Hearing Officer erred in not taking testimony from Office of Mental Health (hereinafter OMH) personnel regarding petitioner’s mental condition (see 7 NYCRR 254.6 [c]). Although a therapist from OMH that petitioner had requested refused to testify, the Hearing Officer was obligated to interview, out of petitioner’s presence, an OMH clinician “as may be available” concerning petitioner’s mental condition (7 NYCRR 254.6 [c] [3]…). Here, the Hearing Officer made no effort to ascertain the testimony of the therapist, or any other clinician at OMH, outside the presence of petitioner. Under the circumstances presented herein, the proper remedy for the Hearing Officer’s failure to satisfy his obligations under 7 NYCRR 254.6 (b) is a new hearing to address petitioner’s mental health status… . Matter of Howard v Prack, 2016 NY Slip Op 01538, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S DEFENSE, DETERMINATION EXPUNGED)

DENIAL OF PETITIONER’S REQUEST FOR TWO CORRECTIONAL-STAFF WITNESSES WAS ERROR, DETERMINATION ANNULLED.

The Third Department annulled the disciplinary determination because the hearing officer improperly denied petitioner’s request to call two witness who on the staff of the correctional facility and were trained in the identification of gang-related materials. Petitioner was charged possession of gang-related materials (photographs):

… [T]he Hearing Officer improperly denied petitioner’s request to call two witnesses, who were correctional facility staff trained at identifying gang-related materials, to support his claim that the pictures did not depict any gang-related signs. As petitioner sought such testimony in order to refute a correction officer’s testimony that the gestures in the pictures depict gang signs, the Hearing Officer erred in finding that such testimony would be redundant. Given that the Hearing Officer put forth a good faith reason for the denial, this violated petitioner’s regulatory right to call witnesses and the proper remedy is to remit the matter for a new hearing … . Matter of Williams v Annucci, 2016 NY Slip Op 01535, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (DENIAL OF REQUEST FOR STAFF WITNESSES REQUIRED ANNULMENT)

NO EFFORT WAS MADE TO DETERMINE WHY PETITIONER’S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED.

The Third Department annulled the determination because no effort was made to determine why petitioner's cellmate refused to testify at the hearing:

Petitioner contends, among other things, that he was improperly denied the right to have his cellmate, who allegedly overheard the correction officer threaten him, testify at the hearing. Petitioner requested the cellmate as a witness at the hearing. A correction officer approached the cellmate about testifying, but he apparently refused and would neither sign a refusal form nor state the reason for his refusal. It does not appear that the Hearing Officer communicated directly with the cellmate, but rather related this information to petitioner based upon the contents of the refusal form. Notably, the correction officer who completed the refusal form did not testify at the hearing.

This Court has acknowledged that “[a] deprivation of the inmate's right to present witnesses will be found when there has been no inquiry at all into the reason for the witness's refusal, without regard to whether the inmate previously agreed to testify” … . No such inquiry was made by the Hearing Officer here, and respondent has essentially conceded this much. Thus, while respondent maintains that this is a regulatory violation for which remittal is appropriate, we find that the circumstances presented give rise to a constitutional violation for which expungement is the proper remedy … . Matter of Tevault v Prack, 2016 NY Slip Op 01533, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (NO EFFORT MADE TO DETERMINED WHY PETITIONER'S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED)

HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S CLAIM HE WAS UNABLE TO PROVIDE A URINE SAMPLE, DETERMINATION EXPUNGED.

The Third Department expunged petitioner's disciplinary determination finding that the hearing officer improperly failed to consider medical evidence demonstrating petitioner was unable to provide a urine sample, and did not refuse to provide a sample:

[Petitioner] informed the Hearing Officer of his medical condition during the hearing and also provided medical documentation establishing that he had problems providing urine specimens in the past due to this condition. The Hearing Officer downplayed the significance of petitioner's medical condition and did not consider the medical documentation submitted even though it was sent prior to the conclusion of the hearing. The only evidence that the Hearing Officer considered was the misbehavior report and the request for urinalysis form. The request for urinalysis form indicated that petitioner did not willfully refuse to submit the specimen, but also stated that petitioner did not claim to be unable to submit the specimen in the presence of others. Given this inconsistency in the request for urinalysis form, the absence of any testimony concerning the administration of the urinalysis test or petitioner's medical condition and the Hearing Officer's failure to consider the medical documentation submitted, we find that the determination at issue is not supported by substantial evidence … . Matter of Katsanos v Prack, 2016 NY Slip Op 01531, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER'S DEFENSE, DETERMINATION EXPUNGED)

PEOPLE DEMONSTRATED, IN A RODRIGUEZ HEARING, THE IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY; WADE HEARING NOT NECESSARY.

The Third Department determined the evidence presented at the Rodriguez hearing demonstrated the confidential informant's (CI's) identification of the defendant was confirmatory (i.e., based upon prior acquaintance with the defendant) and, therefore, a Wade hearing to determine the validity of the identification was not necessary. The court also noted that a two-hour discrepancy between when the drug sale took place as alleged in the indictment, and the testimony about the time of the sale at trial, did not deprive the defendant of the ability to defend against the allegations. With respect to the sufficiency of the identification of the defendant, the court wrote:

 

… “[A] Wade hearing is not required when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification” … . Where, as here, the People assert that the pretrial identification was merely confirmatory, the People bear the burden of “prov[ing] the witness's sufficient familiarity with the defendant at a Rodriguez hearing” … . “Although the People are not obligated to call the identifying witness at [the] Rodriguez hearing” … , they nonetheless must come forward with “sufficient details of the extent and degree of the protagonists' prior relationship” with one another … . Relevant factors to be considered in this regard include “the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations” … . People v Smith, 2016 NY Slip Op 01521, 3rd Dept 3-3-16

CRIMINAL LAW (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/CRIMINAL LAW (TWO-HOUR DISCREPANCY RE: TIME OF DRUG SALE DID NOT DEPRIVE DEFENDANT OF ABILITY TO DEFEND)/IDENTIFICATION (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/RODRIGUEZ HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/WADE HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)

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NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF WHO WAS STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY.

The Third Department determined the complaint against defendant non-secure detention facility for juveniles was properly dismissed. Weeks after the juvenile had left and been discharged from the detention facility, the juvenile was in a high-speed police car-chase and crashed into plaintiff’s car.  The Third Department concluded that the detention facility did not owe a duty of care to the plaintiff, did not have a duty to supervise the juvenile because the juvenile was not in defendant’s custody, and, from the standpoint of the detention facility, the juvenile’s actions were not foreseeable:

 

Defendant’s nonsecure residential treatment center is located on an open campus without gates or bars, and residents are not locked in. Here, the resident was attending an educational program when he chose to leave. One of defendant’s staff members followed him and tried unsuccessfully to persuade him to return. The staff member did not attempt to physically prevent the resident from leaving, pursuant to defendant’s policy that — under the statutory mandate against physical restrictions — permits such intervention only when a resident’s behavior is dangerous to the resident or others. After the resident departed, defendant notified DSS and the police and discharged him when directed to do so by DSS a week later. Plaintiff’s argument that defendant should have imposed greater supervision or restraints to prevent the resident from leaving disregards the distinction between secure and nonsecure detention facilities and, more fundamentally, disregards the fact that defendant did not make the placement decision. …

The duty owed by a school to prevent foreseeable injuries caused by negligent supervision of its students arises “from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … . Because this duty arises from the school’s physical custody of its students, it ceases when a student leaves the premises and the student’s parent or legal custodian is free to resume control … . Here, assuming without deciding that defendant’s residential treatment center can be analogized to a school for this purpose, the collision that injured plaintiff occurred almost a month after the resident left defendant’s physical premises, and three weeks after defendant discharged him from its care, upon the direction of the resident’s legal custodian. Any duty that may have existed while the resident was in its physical custody had long since terminated … . Mayorga v Berkshire Farm Ctr. & Servs. for Youth, 2016 NY Slip Op 01375, 3rd Dept 2-25-16

NEGLIGENCE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/DUTY OF CARE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/NEGLIGENT SUPERVISION (DUTY TO SUPERVISE A RESIDENT OF A NON-SECURE JUVENILE DETENTION FACILITY CEASES WHEN CUSTODY CEASES)

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MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE.

The Third Department determined plaintiff’s libel complaint was properly dismissed. The defendant newspaper published an article about plaintiff’s conviction in a mortgage fraud prosecution which was based upon a press release from the Department of Justice (DOJ). Civil Rights Law 74 prohibits a civil action against the publisher of a fair and true report of a judicial proceeding. The Third Department explained that minor inaccuracies will not prevent the characterization of an article as fair and true:

 

Civil Rights Law § 74 provides, in relevant part, that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding” and, as such, “cloaks those publishing fair and true reports of judicial proceedings with immunity from civil liability” … . “[A]n article may be characterized as ‘fair and true’ if it is substantially accurate” … . Moreover, “[a] fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated” … and “there is ‘no requirement that a publication report the plaintiff’s side of the controversy'” … . Minor inaccuracies are “‘not serious enough to remove [a party’s] reportage from the protection of Civil Rights Law § 74′” … .

In light of the foregoing standard, we agree with Supreme Court that defendants’ published statements were a fair and true representation of the DOJ press release, thus falling within the statutory privilege afforded by Civil Rights Law § 74. Although defendants used language that differed slightly from the DOJ press release in their article, given plaintiff’s criminal charges and convictions detailed in the press release, the language used “does not suggest more serious conduct than that actually suggested in the official proceeding” … . A liberal reading of defendants’ statements in the context of the article demonstrates that the statements are substantially accurate and, thus, a fair and true report of the DOJ press release … . Bouchard v Daily Gazette Co., 2016 NY Slip Op 01364, 3rd Dept 2-25-16

 

DEFAMATION (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/LIBEL (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/CIVIL RIGHTS LAW  (LIBEL, MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)

GENERAL CONTRACTOR’S FAILURE TO TIMELY NOTIFY INSURER OF UNDERLYING LAWSUIT BY INJURED WORKER ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE.

The Third Department, reversing Supreme Court, determined defendant insurer properly disclaimed coverage because the insured, plaintiff general contractor, did not timely notify the insurer of a lawsuit brought by an injured construction worker. Plaintiff was not notified of the suit because it had not appointed a new registered agent for service to replace a defunct agent (not an adequate excuse). The court noted that the “no prejudice” rule applied to the disclaimer, meaning that the insured need not show it was prejudiced by the lack of notice to disclaim:

 

The liability insurance policy at issue here “contain[s] clauses requiring [plaintiff] to provide prompt notice of [both] an occurrence implicating coverage” and any ensuing legal action … . “The insurer’s receipt of such notice is therefore a condition precedent to its liability under the policy,” and a failure to give that notice “may allow an insurer to disclaim its duty to provide coverage” … . At the time the policy here was issued, “[n]o showing of prejudice [was] required” to justify a disclaimer … . The absence of a need to demonstrate prejudice represented “a limited exception to th[e] general rule,” and was justified by a primary “insurer’s need to protect itself from fraud by investigating claims soon after the underlying events; to set reserves; and to take an active, early role in settlement discussions” … .

There is no dispute that plaintiff provided timely notice of the underlying accident, but it is equally clear that plaintiff failed to “[n]otify [defendant] as soon as practicable” that the personal injury action had been commenced. Indeed, plaintiff never gave notice to defendant, although counsel for Speirs did so approximately four months after papers had been served … . That delay, “in the absence of an excuse or mitigating factors, is unreasonable as a matter of law” … . Plaintiff never gave notice because it did not receive the summons and complaint but, inasmuch as its nonreceipt flowed from its failure to appoint a new registered agent for service to replace a defunct one that had been named decades earlier, that explanation was “insufficient as a matter of law” … . Kraemer Bldg. Corp. v Scottsdale Ins. Co., 2016 NY Slip Op 01233, 3rd Dept 2-18-16

 

INSURANCE LAW (FAILURE TO NOTIFY INSURER OF UNDERLYING LAWSUIT ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE)/DISCLAIMER (INSURANCE, FAILURE TO NOTIFY INSURER OF UNDERLYING LAWSUIT ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE)

QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP EXISTED WHICH WOULD SUPPORT THE INSURANCE MALPRACTICE ACTION.

The Third Department, reversing Supreme Court, determined a question of fact had been raised whether a special relationship had developed between plaintiff (the insured) and plaintiff’s insurance agency (defendant Cardell), such that plaintiff could maintain an action for insurance malpractice. Plaintiff put on rodeos and procured insurance from defendant for each event. One policy mistakenly excluded coverage for injuries caused by animals. Another policy didn’t cover the trailers used to transport the rodeo animals. After the rodeo, a few animals escaped as they were about to be loaded onto trailers and injured several people. Both carriers disclaimed coverage. The court explained the law re: a special relationship between an insured and the insurance agency:

 

Although an insurance agent’s common-law duty to his or her clients does not include a continuing duty to advise the clients on appropriate coverage or to recommend additional coverage that the clients did not request …, an agent may be liable for failing to provide appropriate advice in circumstances where there is a special relationship. As pertinent here, such a relationship may arise when “there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . The question whether a special relationship exists between an insurance agent and a client giving rise to a duty to guide and advise the client is a factual determination that “is governed by the particular relationship between the parties and is best determined on a case-by-case basis” … . Here, plaintiff testified that he had purchased his business and personal insurance from defendant for at least six years, that he knew little about insurance and that he relied upon defendant to obtain the appropriate coverage for his rodeo operations. He stated that he had never seen any of the rodeo insurance policies that defendant procured on his behalf, that insurance certificates were the only documents ever provided to him, and that “with [Cardell] being my agent for years, I took that as he was representing me and making sure that I was covered.” As for the failure to include the trailer in the schedule of covered vehicles in plaintiff’s automobile insurance policy — which defendant had also procured — plaintiff stated that he understood that his trailers were covered by his truck insurance and that he was never advised that his trailers should be separately listed as covered vehicles until after the … incident. Finch v Steve Cardell Agency, 2016 NY Slip Op 01231, 3rd Dept 2-18-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)/MUNICIPAL LAW (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)/VEHCILE AND TRAIFFIC LAW (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)

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