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Failure to Allege that But for the Legal Malpractice the Causes of Action Would Have Succeeded Required Dismissal

The Third Department determined plaintiff did not make out a prima facie case of legal malpractice because there was no allegation the causes of action would have been successful but for the alleged malpractice:

…[D]efendants correctly argue that Supreme Court should have granted their motion to dismiss the legal malpractice claim. It is well established that, “[i]n order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” … . Here, although the complaint is replete with allegations of [the attorney’s] alleged failures to use reasonable and ordinary skill in connection with both of plaintiff’s underlying claims, it contains no allegation that, but for these alleged failures, plaintiff would have been successful on either claim. Therefore, even if we accept the allegations as true and liberally construe the complaint to allege negligent representation by [the attorney] …, the allegations are insufficient to make out a prima facie case of legal malpractice… . Hyman v Schwartz, 516728, 3rd Dept 2-27-14

 

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Criteria for Interpreting a Settlement Agreement Which Is Incorporated But Not Merged Into the Judgment of Divorce

In finding that a settlement agreement was not ambiguous and had been complied with by the mother, the Third Department explained the status of a separation agreement which is incorporated but not merged into a judgment of divorce:

A settlement agreement that is incorporated into, but not merged with, a judgment of divorce remains an independent contract, binding on the parties and subject to the rules of contract interpretation … . “Where the language of the agreement is clear, the court must determine the intent of the parties by examining the agreement itself” … .”Whether language is ambiguous is a matter of law to be determined by the court, and in rendering this determination a court may not add or excise terms, nor distort the meaning of those used” … . Matter of Drake v Drake, 516960, 3rd Dept 2-27-14

 

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Statements to Police Officer by Victim at the Scene Were “Nontestimonial” and Were Admissible as Excited Utterances

The Third Department determined a police officer’s testimony about what the assault victim, Stokes, said at the scene and a video of the officer’s encounter with the victim did not violate the defendant’s right to confront witnesses because the admitted statements were “nontestimonial” and “excited utterances.” Stokes had died before the trial:

The officer testified that Stokes said that she had been hit in the head with a bat, described her assailant, and said that he was in a nearby community center. The officer further testified that police then began looking for defendant. The video reveals that the officer encountered Stokes immediately upon arriving at the scene. She was bleeding profusely from her head and complaining of dizziness. The officer asked Stokes about her assailant’s location, description and name, where the attack had occurred, and whether there were other victims, promptly relaying her answers to other police officers and emergency medical personnel who were dispatched to locate and assist Moore and pursue defendant. After the first few minutes, the officer asked no further questions about the incident, concentrating instead on attempting to calm Stokes as she became increasingly agitated and apprehensive about, among other things, the fact that defendant had not been found. County Court correctly determined that the statements by Stokes were admissible as excited utterances … . Further, we find no constitutional violation. The video reveals that the officer’s primary purpose in questioning Stokes was “to enable the police to meet an ongoing emergency and apprehend the perpetrator, not to provide evidence for later prosecution,” and Crawford [541 US 36} does not preclude such nontestimonial statements…. People v Anderson, 105060, 3rd Dept 2-27-14

 

Mother’s Failure to Seek Medical Care for Child Coupled With Mother’s Mental Illness Supported Neglect Finding

The Third Department determined Family Court’s neglect finding was supported by evidence mother did not seek needed dental and medical care for her child and suffered from psychological problems which created an imminent risk of harm to the child:

To establish neglect, a petitioner must demonstrate, by a preponderance of the evidence, that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to the failure of the parent or caretaker to exercise a minimum degree of care (see Family Ct Act §§ 1012 [f] [i]…). In determining the minimum degree of care, courts must objectively evaluate parental behavior in terms of whether “a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing” … . On this basis, a failure to provide adequate medical care and/or follow through with necessary medical treatment constitutes neglect… . * * *”While evidence of mental illness, alone, does not support a finding of neglect, such evidence may be part of a neglect determination when the proof further demonstrates that a respondent’s condition creates an imminent risk of physical, mental or emotional harm to a child”… . Matter of Josephine BB …, 516132, 3rd Dept 2-27-14

 

Summary Judgment Finding Derivative Neglect Should Not Have Been Granted

The Third Department determined Family Court should not have granted summary judgment finding derivative neglect. Despite the recent finding of neglect of three other children (by consent), there were questions of fact about whether the conditions leading to the previous neglect determination were being addressed:

Family Court erred in granting summary judgment because triable issues of fact remain. Summary judgment is rarely used in Family Court proceedings, and is only appropriate when no triable issue of fact exists … . While proof that respondent previously neglected three other children was admissible on the issue of whether he neglected Karm’ny (see Family Ct Act § 1046 [a] [i]), such proof alone typically is not sufficient to establish derivative neglect … . “Derivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent’s care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist” … . The prior neglect determination here occurred less than three months before the instant petition was filed, sufficiently proximate so as to give rise to an inference that the conditions leading to such determination still existed … . Despite that inference, the testimony from the Family Ct Act § 1028 hearing raised questions of fact regarding whether respondent was appropriately dealing with those conditions… . Matter of Karm’ny…, 516250, 3rd Dept 2-27-14

 

Review of Stipulated Custody Arrangement Warranted by Change of Circumstances/Seriousness of Mother’s Alcohol-Related Behavior Increased

The Third Department reversed Supreme Court finding that a change in mother’s alcohol-related behavior warranted a review of the custody arrangement set out in a stipulation:

When parties enter into stipulations resolving custody issues, those stipulations will not be modified unless there is a sufficient change in circumstances since the time of the stipulation, and unless modification of the custody arrangement is in the best interests of the child[]” … . Here, although the father admittedly was aware of the mother’s issues with alcohol at the time that he agreed to share custody with her, evidence of the mother’s continuing and escalating problems in this regard, coupled with her subsequent alcohol-related arrests and the indicated child protective services reports, “was sufficient to constitute a change in circumstances requiring a review of the existing custody arrangement in order to determine whether [such arrangement] continued to be in the child’s best interests” … . Accordingly, Supreme Court should have undertaken a best interests analysis. Matter of Kiernan v Kiernan, 515662, 3rd Dept 2-20-14

 

“Presumption of Compensability” Applied

The decedent was working, driving a truck, when his truck struck a toll booth. There was evidence the decedent had a stroke, either just before or after the accident. In affirming the validity of the claim, the Third Department explained the application of the “presumption of compensability:”

…[W]e reject the employer’s assertion that claimant failed to meet her burden of establishing a casually related death. “Pursuant to Workers’ Compensation Law § 21 (1), a presumption of compensability exists where, as here, an unwitnessed or unexplained injury occurs during the course of the affected worker’s employment”… . As relevant here, the statutory presumption is applicable where either a stroke occurs during work … or where the onset of stroke symptoms occurs during work … . If the presumption is applicable, a claimant is not required “‘to come forward, in the first instance, with prima facie medical evidence of a causal relationship between’ [the] injury and [the] employment” … . * * *Inasmuch as decedent clearly had an accident while working, and it was either the stroke that caused the accident or the accident that caused the stroke, the Board properly applied the presumption that decedent’s injury was causally related to his employment (see Workers’ Compensation Law § 21 [1]…). Matter of Stevenson v Yellow Roadway Corporation…, 516077, 3rd Dept 2-20-14

 

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Attorney Was an “Employee,” Not an Independent Contractor, for Puposes of the State and Local Employees’ Retirement System

The Third Department reversed the Comptroller’s ruling that petitioner, an attorney, was not an employee of the school district for purposes of benefits provided by the New York State and Local Employees’ Retirement System:

…”[W]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship” … . “Rather, such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means” … . In other words, “over-all control is sufficient to establish the employee relationship where [professional] work is concerned” … . Upon our review, we fail to find substantial evidence to support the Comptroller’s determination that petitioner was an independent contractor and not an employee of the school district.Here, the school district’s former superintendent, who worked with petitioner for nearly four decades, testified that during his tenure he supervised all staff at the school district, including petitioner. Matter of Brothman v DiNapoli, 517032, 3rd Dept 2-20-14

 

Revocation of Day-Care License “Shocking to One’s Sense of Fairness”

The Third Department determined revocation of petitioner’s day-care license was too severe a penalty for a situation in which two children were left unsupervised for 20 to 30 minutes. The children, ages 11 and 13, had a cell phone and were never in any imminent danger of harm:

Although petitioner violated a regulation, the penalty of revocation is too disproportionate to this isolated violation that was the result of extenuating circumstances. An administrative penalty “must be upheld unless it is ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness'” …, “thus constituting an abuse of discretion as a matter of law” … , * * *Based on the children’s ages and their possession of a cell phone that they used to contact petitioner, the children were not put in danger by this incident, despite the potential danger that existed from children being left unsupervised …. . Although the regulation makes clear that it is not appropriate to leave children unsupervised (see 18 NYCRR 417.8 [a]), petitioner did not violate the regulation intentionally, as she had established a plan for the supervision of the children in her absence, and the violation occurred as “the result of extenuating circumstances”… . Matter of Lewis v NYS Office of Children and Family Services, 516650, 3rd Dept 2-20-14

 

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Criteria for Interpreting Ambiguous Terms in Separation Agreement

The Third Department explained how ambiguity in the terms of a separation agreement is to be handled by the courts:

Ambiguity in a separation agreement is resolved, as with any contract, by determining the parties’ intent from within the instrument’s four corners, if possible, and otherwise from extrinsic evidence … . In doing so, “[t]he court is not limited to the literal language of the agreement, but should also include a consideration of whatever may be reasonably implied from that literal language”… . Matter of Apjohn v Lubinski, 516326, 3rd Dept 2-20-14

 

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