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In Order for Family Court to Review a Support Magistrate’s Order, Specific Objections Must Have Been Made to Preserve the Issues Raised in Family Court

The Third Department determined that Family Court’s order must be vacated because it was based upon issues not raised in objections to the Support Magistrate’s order.  Because Family Court acts as an appellate court with respect to orders by the Support Magistrate, any errors must be preserved by objections:

…”[A]n order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires specific objections for issues to be preserved” … .  The issues noted by the court were not included in the father’s objections …. Matter of Porter v D’Amano. 516522, 3rd Dept 1-9-14

 

Waiver of Indictment and Guilty Plea Invalid—Superior Court Information Charged a Greater Offense than that Charged in the Original Misdemeanor Information

The Third Department determined defendant’s conviction must be reversed because the superior court information to which defendant pled guilty charged a greater offense (conspiracy fourth degree) than was charged in the misdemeanor complaint (criminal solicitation fourth degree).  In addition, because the defendant’s guilty plea to another offense (criminal sexual act first degree) was induced by the court’s promise of a lesser sentence to run concurrently with the overturned conspiracy sentence, the sexual act plea must be vacated.  With respect to the invalid superior court information, the court wrote:

In New York, felony charges must be prosecuted by indictment, unless a defendant “held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, . . . waive[s] indictment by a grand jury and consent[s] to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6; see CPL 195.10 [1]).  Where an indictment waiver has been secured, however, the People may not charge in a superior court information a “‘greater offense[], which [has] additional aggravating elements'” … .  This is precisely what occurred here.  The misdemeanor complaint charged defendant with criminal solicitation in the fourth degree and the superior court information impermissibly charged the greater offense of conspiracy in the fourth degree.  Inasmuch as the improper inclusion of a greater offense is a jurisdictional infirmity …, notwithstanding defendant’s appeal waiver and plea, we must reverse his conviction of conspiracy in the fourth degree and dismiss the superior court information… . People v Price, 2014 NY Slip Op 00140 [113 AD3d 883] 3rd Dept 1-9-14

 

Post-Readiness Delay Ran Out Speedy Trial Clock

The Third Department determined defendant’s indictment must be dismissed because of the People’s post-readiness delay.  There were seven days left on the speedy trial clock when the People obtained a superseding indictment. The People requested an adjournment.  The record did not demonstrate the length of the requested adjournment, so the People were charged with the actual length of the adjournment, which was more than seven days:

…[W]here the People have requested an adjournment, “it is the People’s burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged” … .  The People failed to discharge that burden here.  The calendar call at which the adjournment was granted was not transcribed and, although the People are only chargeable with the length of the adjournment actually requested … – as opposed to the length of the adjournment ultimately granted – the record does not establish the length of the adjournment requested by the People. Accordingly, we have no choice but to charge the People with the entire 21 days occasioned by the adjournment, which brings them beyond the seven days remaining on the speedy trial clock… . People v Miller, 104500, 3rd Dept 1-9-14

 

Proof of Indemnification Agreement Insufficient

The Third Department determined the employer did not demonstrate that the contractor hired by the employer had agreed to indemnify the employer for damages related to the injury of the contractor’s employee:

Workers’ Compensation Law § 11 precludes third-party indemnification claims against employers unless the claim is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the . . . person asserting the cause of action for the type of loss suffered” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … .  “Whether the parties did in fact have such an agreement involves a two-part inquiry.  First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of [Workers’ Compensation Law §] 11… . Trombley v Socha…, 516943, 3rd Dept 1-9-14

 

Question of Fact Whether Wife of Decedent Had Abandoned Decedent

The Third Department determined that a question of fact had been raised about whether decedent’s wife had abandoned decedent such that she should be disqualified as surviving spouse:

A person may be disqualified from inheriting from his or her deceased spouse where the surviving “spouse abandoned the deceased spouse, and such abandonment continued until the time of death” (EPTL 5-1.2 [a] [5]).  The party asserting abandonment bears the burden of establishing that the surviving spouse departed from the marital abode and that such departure was both “unjustified and without the consent of the other spouse” ,,, .  In determining whether one spouse has abandoned the other, a court employs the same standards as are applied in the context of an action for a separation or divorce based on abandonment … . Matter of Yengle…, 516840, 3rd Dept 1-9-14

 

Employer Reimbursed for Personal Leave Credits Used During Employee’s Disabilty

The Third Department determined that the employer should be reimbursed for the personal leave credits used by an employee during the period of disability.  The employee’s receiving full wages plus the leave time pay justified the reimbursement:

The circumstances presented here are distinguishable from Matter of Poupard v Mohonasen Cent. School Dist. (56 NY2d 764, 765 [1982]) and Matter of Jefferson v Bronx Psychiatric Ctr. (55 NY2d at 71), the cases relied on by the Board.  There, the employees charged time during disability to their accrued sick leave credits and, pursuant to their respective collective bargaining agreements, such used sick leave credits could not be restored.  Because the employees could later convert their accrued sick leave credits into retirement service credits, the loss of those credits resulted in a permanent benefit to the employers.  …

…[H]ere, the denial of reimbursement for payments related to personal leave credits would result in claimant receiving both full wages and compensation benefits for the time in question.  Such a result is disfavored and requires that reimbursement be granted to the employer… . Matter of Mott v Central New York Psychiatric Center…, 516708, 3rd Dept 1-9-14

 

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Dismissal of Slip and Fall Case at Summary Judgment Stage Was Premature Where Relevant Evidence Is Entirely Within the Control of the Defendants

The Third Department determined summary judgment granted to the village and county in a slip and fall case should have been denied.  Plaintiff tripped on patched pavement on an approach to a bridge.  There was a question of fact whether the county or the village was responsible for repairs in that area.  Because the information regarding the repairs was totally beyond the control of the plaintiff, dismissal at the summary judgment stage was premature:

…[P]laintiffs have not produced any direct evidence that either the County or the Village performed the patching that plaintiffs’ expert says caused plaintiff’s injury.  Notably, however, neither defendant produced written policies, repair logs, inspection reports or other documentation – other than the survey – to support their respective claims; both deny that any pertinent records exist and rely exclusively upon the testimony of their officials.  The pertinent facts are entirely outside plaintiffs’ knowledge and within the exclusive knowledge of the parties moving for summary judgment – a circumstance in which summary judgment is inappropriate … .  In the absence of direct evidence, plaintiffs are forced to rely solely on circumstantial evidence to oppose defendants’ summary judgment motion – that is, the inference that, given the claim of each defendant that the other bears responsibility for maintaining the bridge approach, and the dearth of evidence that any other entity has such responsibility or authority, one of them must have performed the repairs that allegedly caused plaintiff’s accident … .   In these circumstances, “[a]lthough plaintiffs clearly will bear the burden of proof on the issue at trial, they raised sufficient issues of fact in the context of [these] summary judgment motion[s] to warrant having the circumstantial evidence and defendants’ credibility concerning the [creation of the defect] tested by cross-examination and assessed by the trier of fact”… . Guimond v Village of Keeseville, 515869, 516320, 3rd Dept 1-9-13

 

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Disclosure of Appraisal Documents Not Entitled to Conditional Immunity Even If Prepared Solely for Litigation/No Other Way for Claimants to Obtain Relevant Evidence

In a matter related to the taking of property for the construction of a highway, the Third Department determined the claimants were entitled to an appraisal done by the defendants, even if the documents were prepared solely in anticipation of litigation.  The claimants demonstrated that they had no other avenue to obtain the evidence relevant to their claims:

Even if the documents were prepared solely in anticipation of litigation, claimants demonstrated that the conditional immunity should not prevent disclosure because they have a substantial need and an inability to otherwise obtain the documents.  … The Court of Claims … acknowledged that the subpoenaed documents were relevant to the claim for property damage, to prove the condition of the property immediately before the construction.  Thus, even if the documents were drafted solely for litigation purposes, the appraisal and supporting documents would be subject to disclosure based on claimants’ substantial need and their lack of another source for that proof (see CPLR 3101 [d] [2]). Lerner v State of New York, 516774, 3rd Dept 1-9-14

 

Growling and Baring Teeth Insufficient to Raise Question of Fact About a Dog’s Vicious Propensities

The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities:

No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities … . Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint.   Gervais v Laino, 2013 NY Slip Op 08819, 1st Dept 12-31-13

 

Homeowner Did Not Create Dangerous Condition (Wet Leaves on a Slope)/Condition Was Open and Obvious (No Duty to Warn)

The Third Department affirmed the grant of summary judgment to the defendants homeowners in a slip and fall case.  Plaintiff, who was following the homeowner as they walked around the house counting windows, slipped on a slope adjacent to the house which was covered with wet leaves.  The court determined defendants did not create the hazardous condition and had no duty to warn of the condition:

“Generally, landowners both owe a duty to exercise reasonable care in maintaining their property in a reasonably safe condition and have a duty to warn of a latent, dangerous condition of which the landowner is or should be aware” … . However, the landowner’s duty to warn “does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” … .  As the movants, defendants were required to “make a prima facie showing of entitlement to judgment as a matter of law” … .

Defendants satisfied their threshold burden, as the moving parties, by establishing … that they exercised reasonable care by maintaining the premises year round and in a seasonally appropriate manner, and that they did not create the condition, which occurred as a result of natural seasonal changes.  Notably, plaintiff’s fall did not occur on a pathway, walkway or driveway but, rather, on the surface of the ground along the side of the house on the unaltered natural contour of the land in an area that was exposed to the elements; it was not foreseeable that someone would traverse on this obviously slippery terrain so as to impose an obligation on the owners to take precautions such as clearing the ground area of leaves and debris … .

Moreover, defendants’ proof established that the slippery condition of the leaf and debris-covered natural, unimproved downward slope was an open and obvious hazard, as opposed to a latent or concealed one, in that the danger “could not be overlooked by any observer reasonably using his or her ordinary senses”…. . Freeese v Bedford, 516863, 3rd Dept 12-26-13

 

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