Third Department – Page 24 – New York Appellate Digest

SERVICE OF THE ORDER APPEALED FROM BY EMAIL DOES NOT START THE TIME TO TAKE AN APPEAL; FATHER’S REQUEST FOR TELEPHONIC AND WRITTEN CONTACT WITH HIS DAUGHTER PROPERLY DENIED; FATHER WAS INCARCERATED FOR PREDATORY SEXUAL BEHAVIOR INVOLVING A CHILD ABOUT THE SAME AGE AS HIS DAUGHTER (THIRD DEPT).

The Third Department, affirming Family Court’s denial of father’s request for telephonic and written contact with his daughter, in a full-fledged opinion by Justice Egan, determined Family Court did not abuse its discretion. Father is incarcerated after pleading guilty to predatory sexual assault against a child, possessing a sexual performance by a child, promoting a sexual performance by a child and use of a child in a sexual performance. The victim of father’s crimes was about the same age as father’s daughter and was acquainted with father’s daughter. The Third Department noted that the time for perfecting father’s appeal never started to run because the notice of the entry of the order appealed from was sent to father by email, which is not an accepted method of service:

… “[A]s the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there is no indication that he was served by any of the methods authorized by the statute, we conclude that the time to take an appeal did not begin to run and that it cannot be said that the father’s appeal is untimely” … . * * *

Family Court observed that the father pleaded guilty to sex offenses relating to a victim who was about the same age as the child at the time of the hearing — and who was, we note, acquainted with the child — and the father’s testimony gave no reason to believe that he appreciated how his actions might have impacted the child. Family Court further credited the mother’s testimony that she had given the child all of the father’s letters after screening them for inappropriate content, and that the child had simply decided, without any interference from the mother, not to respond to them. The child was almost 13 years old at the time of the hearing and, as such, her apparent desire not to communicate with the father was entitled to some weight in assessing her best interests … . We are satisfied that, according deference to Family Court’s assessment of witness credibility, the foregoing constitutes a sound and substantial basis in the record for the determination that the presumption favoring visitation with a noncustodial parent had been rebutted and that the best interests of the child would be served by limiting contact with the father to written correspondence to which the child was not required to respond … . Matter of Robert M. v Barbara L., 2024 NY Slip Op 01847, Third Dept 4-4-24

Practice Point: Service of an order by email does not start the 30-day period for taking an appeal of the order.

Practice Point: Family Court did not abuse its discretion by denying the incarcerated father’s request for telephonic and written contact with his daughter. Father had pled guilty to predatory sexual behavior involving a victim about the same age as his daughter and with whom his daughter was acquainted.

April 4, 2024

Attorneys, Criminal Law, Judges, Municipal Law

THE TRANSFER OF DEFENDANT’S CASE TO A SPECIAL PROSECUTOR WAS JUSTIFIED BY THE EXPLANATION OF A CONFLICT WITHIN THE DA’S OFFICE; HOWEVER, THE TRANSFER BACK TO THE DA’S OFFICE WAS NOT BASED ON AN EXPLANATION WHY THE CONFLICT WAS NO LONGER A PROBLEM; THE TRANSFER BACK TO THE DA’S OFFICE WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing County Court, determined the prosecution of defendant’s case should not have been transferred from the special prosecutor, appointed two months before because of a conflict within the DA’s office, back to the DA’s office. The Third Department noted that the initial decision to appoint a special prosecutor based on a conflict was supported by the application, but there was no explanation why that conflict no longer existed such that the DA’s office could ultimately handle the case:

County Law § 701 does not specifically detail the procedure to be followed when a special prosecutor is relieved of his or her appointment, and there is little case law relevant to this issue …; however, it is apparent that the only options are to either appoint another special prosecutor or to return the matter, if appropriate, to the DA’s office. Indeed, certain policy considerations weigh in favor of allowing the DA’s office to prosecute the case, namely, a “public interest in having prosecutorial duties performed, where possible, by the constitutional officer chosen by the electorate” … . Here, however, the DA’s office had, less than two months prior, sought appointment of a special prosecutor based upon a conflict. Based upon this sworn assertion of a conflict, County Court (Lambert, J.) entered an order disqualifying the DA’s office and appointing the special prosecutor. Then, when subsequently returning the matter to the disqualified DA’s office, no record was made as to why disqualification was no longer necessary. From the scant record of what occurred here, it is clear that defendant’s concerns regarding the DA’s office’s prior disqualification and possible conflict fell on deaf ears. Thus, because on this record we cannot determine why County Court (Burns, J.) deemed it appropriate to no longer disqualify the DA’s office, we find that the court committed reversible error in returning the matter to the DA’s office … . People v Faison, 2024 NY Slip Op 01836, Third Dept 4-4-24

Practice Point: Just as the transfer of a criminal prosecution from the DA’s office to a special prosecutor based upon a conflict within the DA’s office requires a valid explanation, the transfer of the criminal prosecution from the special prosecutor back to the DA’s office requires a valid explanation why the conflict is no longer a problem. Here the absence of an explanation rendered the transfer back to the DA’s office reversible error.

April 4, 2024

Workers' Compensation

PSYCHOLOGICAL INJURY FROM EXPOSURE TO COVID IN THE WORKPLACE MUST BE ASSESSED USING THE SAME CRITERIA AS ARE APPLIED TO PHYSICAL INJURY; MATTER REMITTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing the denial of benefits and remitting the matter to the Workers’ Compensation Board, determined that psychological injury from exposure to COVID at the workplace must be treated the same as physical injury, taking into consideration the claimant’s particular vulnerabilities:

Pursuant to the employer’s policy for the 2020-2021 school year, claimant, a second-grade school teacher with a past medical history of asthma and bronchitis, returned to work in person at her assigned school building on September 7, 2020; the students continued to attend classes remotely at that time. On or about September 21, 2020, claimant was informed that another teacher at the school had tested positive for COVID-19, prompting the temporary closure of the school building. Claimant began feeling ill on or about September 23, 2020 but tested negative for COVID-19 on that date. On October 1, 2020, claimant returned to work in person, but she became increasingly anxious in anticipation of the students’ return to the building, which was scheduled to occur on Monday, October 5, 2020. She did not return to work after October 2, 2020. * * *

On appeal, claimant argues that, in cases involving exposure to the COVID-19 virus, the Board applies disparate burdens to claimants seeking compensation for a physical injury as compared to those seeking compensation for a psychological injury, in violation of the principle that “psychological or nervous injury precipitated by psychic trauma is compensable to the same extent as physical injury” … . * * *

… Given that the Board did not consider claimant’s particular vulnerabilities and that it applied a disparate burden in determining whether the alleged psychological injury was caused by a workplace accident, we must remit this matter for reconsideration not inconsistent with the guidance provided herein. On remittal, the Board is tasked with determining whether claimant’s proof establishes that she suffered a workplace accident, as relevant here, by proving either a specific exposure to COVID-19 or the prevalence of COVID-19 in her work environment so as to present an elevated risk of exposure constituting an extraordinary event. If claimant establishes the existence of such an accident, then the Board must determine, “in light of the commonsense viewpoint of the average [person]” … , and considering claimant’s particular vulnerabilities, whether claimant established, by competent medical evidence, a causal connection between the alleged injury and the workplace accident … . Matter of Anderson v City of Yonkers, 2024 NY Slip Op 01755, Third Dept 3-28-24

Practice Point: Re: eligibility for Workers’ Compensation benefits, psychological injury from exposure to COVID at the workplace is to be assessed using the same criteria as are applied to physical injury—analytical guidance is laid out in detail.

March 28, 2024

Administrative Law, Civil Procedure, Landlord-Tenant, Municipal Law

THE THIRD DEPARTMENT DETERMINED THE NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE PROVIDES SUFFICIENT STANDARDS AND MECHANISMS FOR ENFORCEMENT OF THE CODE PROVISIONS; A TENANT WHOSE BUILDING WAS DECLARED UNSAFE AFTER ORDERS TO REMEDY DEFECTS WERE IGNORED BY THE LANDLORD BROUGHT A PETITION FOR A WRIT OF MANDAMUS TO COMPEL THE SECRETARY OF STATE TO STRENGTHEN CODE ENFORCEMENT STANDARDS AND MECHANISMS; THE PETITION WAS DENIED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, over a two-justice dissent, determined that the regulations associated with the enforcement of the NYS Uniform Fire Prevention and Building Code (Uniform Code) are adequate. Petitioner, a former tenant in a building which was ultimately declared unsafe after several orders to remedy building-defects were ignored by the landlord, brought a petition for a writ of mandamus requiring the NYS Secretary of State to provide standards for the enforcement of the Uniform Code. The petition was dismissed after an exhaustive discussion of the relevant regulations and enforcement standards and mechanisms. The opinion is too detailed to fairly summarize here. Matter of Clements v New York Secretary of State, 2024 NY Slip Op 01756, Third Dept 3-28-24

March 28, 2024

Landlord-Tenant, Municipal Law

THE CITY OF KINGSTON PROPERLY DECLARED A RENTAL-UNIT SHORTAGE-EMERGENCY AND PROPERLY IMPOSED LIMITATIONS ON RENT INCREASES DURING THE EMERGENCY PERIOD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing (modifying) Supreme Court, determined the respondent City of Kingston properly declared a rental-unit shortage emergency and properly imposed limits on rent increases during the emergency period. Apparently the City of Kingston experienced an influx of new residents moving from New York City during the COVID pandemic. The opinion is too detailed to fairly summarize here:

The Emergency Tenant Protection Act of 1974 (ETPA) … was enacted to “permit[ ] regulation of residential rents [for many living accommodations] upon the declaration of a housing emergency in New York City” or a similar declaration by municipalities in Nassau County, Westchester County or Rockland County … . The ETPA specifically provided, in relevant part, that the governing body of a municipality in Nassau County, Westchester County or Rockland County could make “[a] declaration of emergency . . . as to any class of housing accommodations if the vacancy rate for the housing accommodations in such class within such municipality is not in excess of five percent” …. Thereafter, a county rent guidelines board, “consist[ing] of nine members appointed by the commissioner of housing and community renewal upon recommendation of the county legislature,” would, among other things, establish annual guidelines for rent adjustments at the impacted accommodations until the housing emergency had abated or ended … .

Pursuant to the Housing Stability and Tenant Protection Act of 2019 … [hereinafter HSTPA]), the Legislature allowed municipalities statewide to opt in to the rent adjustment scheme created by the ETPA upon a declaration of emergency due to a housing vacancy rate of 5% or less … . Matter of Hudson Val. Prop. Owners Assn. Inc. v City of Kingston N.Y., 2024 NY Slip Op 01593, Third Dept 3-21-24

Practice Point: Because of an influx of new residents during the COVID pandemic, the City of Kingston properly declared a rental-unit-shortage emergency and properly imposed limitations on rent increases during the emergency.

March 21, 2024

Evidence, Negligence

PLAINTIFF, AN EXPERIENCED GOLFER WHO WAS PARTICIPATING IN A TOURNAMENT, ASSUMED THE RISK OF BEING STRUCK IN THE EYE BY A GOLF BALL WHILE RIDING IN A GOLF CART (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff golfer assumed the risk of being struck by a golf ball during a golf tournament. Supreme Court and the dissenters concluded there was a question of fact whether the design of the defendant golf course unreasonably increased the risk:

Plaintiff was riding in a golf cart on the seventh hole fairway when he was hit by a ball struck by defendant Justin Hubbard, who had just teed off from the third hole. Both the third and seventh holes are over 400 yards in length. The fairways on each hole run parallel, in part, in the area in front of the third tee, and that part of the seventh fairway approaching the green, which from a vantage point on the fairway, is adjacent to and to the right of the third tee. * * *

… [I]t is well established that “being hit without warning by a shanked shot” is “a commonly appreciated risk” of participating in the sport … . ” ‘[G]olfers are deemed to assume the risks of open topographical features of a golf course’ “… , and “evidence establishing that the proximity of [a tee] to [a different] green and hole was open and obvious” will preclude liability against a golf course for injuries sustained as a result of such proximity … . Katleski v Cazenovia Golf Club, Inc., 2024 NY Slip Op 01366, Third Dept 3-14-24

Practice Point: The majority concluded plaintiff golfer assumed the risk of being struck by a golf ball. Supreme Court and the two dissenters argued the design of defendant golf course unreasonably increased the risk.

March 14, 2024

Disciplinary Hearings (Inmates), Evidence

THE HEARSAY MISBEHAVIOR REPORT, UNSUPPORTED BY ANY INVESTIGATION, DID NOT CONSTITUTE SUBSTANTIAL EVIDENCE OF PETITIONER’S GUILT; DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the determination, held that the hearsay misbehavior report which was not substantiated by an investigation was insufficient to support guilty finding:

“[H]earsay misbehavior reports can constitute substantial evidence to support a determination of guilt so long as the evidence has sufficient relevance and probative value” … . Here, the correction officer who authored the misbehavior report testified at the hearing that no investigation into the allegation was conducted, explaining that the matter was reported toward the end of his shift and, therefore, there was no time for any investigation. Although the correction officer testified that the incarcerated individual who accused petitioner of making threats was “pretty convincing,” he offered no further basis or details as to why he found the report of the threat to be credible. Further, the incarcerated individual who made the allegations against petitioner, and who is identified in the misbehavior report, refused to testify at the hearing. As such, the only evidence to support the charge is the hearsay misbehavior report reciting nothing more than an unverified and uninvestigated accusation that petitioner threatened a fellow incarcerated individual. Under these circumstances, the misbehavior report does not constitute substantial evidence of petitioner’s guilt, and the determination must be annulled … . Matter of Alvarado v Annucci, 2024 NY Slip Op 01227, Third Dept 3-7-24

Practice Point: In inmate disciplinary hearings, a hearsay misbehavior report unsupported by any investigation does not constitute substantial evidence of guilt and will not support a guilty determination.

March 7, 2024

Administrative Law, Appeals, Civil Procedure

THE DECLARATORY RULING BY THE PUBLIC SERVICE COMMISSION (PSC) WAS FINAL AND THEREFORE WAS A PROPER SUBJECT OF AN ARTICLE 78 PETITION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the ruling by the Public Service Commission (PSC) was ripe for an Article 78 review and, therefore, the PSC’s motion to dismiss the petition should not have been granted. The declaratory ruling by the PSC was final and could not be altered by he PSC:

“A declaratory ruling shall be binding upon the agency unless it is altered or set aside by a court” by virtue of a CPLR article 78 proceeding (State Administrative Procedure Act § 204 [1]). Particularly relevant here, State Administrative Procedure Act § 204 (1) does not permit an agency to “retroactively change a valid declaratory ruling,” only allowing such changes to apply “prospectively.” Thus, the explicit language of State Administrative Procedure Act § 204 did not allow the PSC to modify its initial ruling … . * * * … [T]he … declaratory ruling issued by the PSC is quasi-judicial in nature and, at the moment it was issued, was “accorded the [same] conclusiveness that attaches to judicial judgments,” thus rendering it ripe for review … . Matter of Clean Air Coalition of W. N.Y., Inc. v New York State Pub. Serv. Commission, 2024 NY Slip Op 01233, Third Dept 3-7-24

Practice Point: A declaratory ruling by the Public Service Commission (PSC) is final and cannot be altered by the Commission. Therefore the ruling is ripe for an Article 78 review by a court.

March 7, 2024

Civil Procedure, Foreclosure

SUPREME COURT PROPERLY ALLOWED DEFENDANT IN THIS FORECLOSURE ACTION TO SERVE A 10-MONTHS-LATE ANSWER, CRITERIA EXPLAINED; IN ADDITION, SUPREME COURT PROPERLY DISMISSED THE FORECLOSURE ACTION AS TIME-BARRED, CRITERIA EXPLAINED (THIIRD DEPT).

The Third Department, affirming Supreme Court, in a full-fledged opinion by Justice Egan, determined the judge properly granted leave to serve a late answer raising the statute-of-limitations defense to the foreclosure action. The motion for leave to serve a late answer was made 10 months after the expiration of the time to serve an answer. The Third Department affirmed the dismissal of the complaint as time-barred.

… [D]efendant did not seek leave to serve a late answer until approximately 10 months after the expiration of his time to serve an answer, but there is no indication that the failure to serve an answer was willful. Defense counsel … attributed the delay to defendant’s unsuccessful pro se negotiations with plaintiff — of which little detail was given, but which plaintiff also notably failed to deny had occurred — after which defendant promptly sought legal assistance upon receiving plaintiff’s motion for a default judgment … . Plaintiff further offered no explanation as to how it would be prejudiced by allowing defendant to serve a late answer. * * *

As the first [foreclosure] action was dismissed for neglect to prosecute, neither CPLR 205 (a) nor CPLR 205-a afforded plaintiff a six-month grace period in which to commence this action following the termination of that action upon dismissal of plaintiff’s appeal from the 2016 order … Supreme Court … , as a result, properly dismissed this action as time-barred. Deutsche Bank Natl. Trust Co. v Deluca, 2024 NY Slip Op 01132, Third Dept 2-29-24

Practice Point: The criteria for allowing leave to serve a late answer is explained in some depth.

Practice Point: The unique criteria for dismissal of a foreclosure action as time-barred is explained in some depth.

February 29, 2024

Evidence, Medical Malpractice, Negligence

IN A MEDICAL MALPRACTICE CASE, CONFLICTING EXPERT OPINIONS WHICH ARE EVIDENCE-BASED (I.E., NOT MERELY “CONCLUSORY”) REQUIRE DENIAL OF SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice case, determined plaintiff’s expert raised questions of fact about whether defendant surgeon failed to diagnose and treat a post-operative infection of plaintiff’s knee. Therefore, defendant’s motion for summary judgment should not have been granted. The decision is fact-specific and cannot be fairly summarized here. But the simple issue is: if experts on both sides of a med mal case come to conflicting conclusions which are evidence-based, summary judgment is inappropriate:

Based on the conflicting expert proof, plaintiff raised triable issues of fact … . Accordingly, defendants were not entitled to summary judgment. Kelly v Herzog, 2024 NY Slip Op 01137, Third Dept 2-29-24

Practice Point: In a med mal case, conflicting expert affidavits which are not “conclusory,” but rather are supported by evidence, preclude summary judgment.