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No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases

The Third Department determined summary judgment was properly granted to defendants in a lead-paint exposure case.  Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling paint in the apartment:

To raise a triable issue of constructive notice, plaintiff was required to show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment. Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants’ awareness that paint was peeling in the apartment.  Cunningham v Keehfus, 516733, 3rd Dept 12-26-13

The Third Department affirmed the same result in another lead-paint exposure case:

Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in the basement apartment, had the right to enter the apartment to make repairs, and did so.  However, he testified that he “didn’t know anything about lead poisoning” before the October 1990 inspection, did not remember peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the building before he purchased it.   This testimony was sufficient to establish on a prima facie basis that defendant did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish triable issues of fact… .

…[T]he record includes no evidence that the prior owner told defendant about the building’s previous lead problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his education and reading skills were limited – was sophisticated in the ownership and maintenance of rental properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues … Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd Dept 12-26-13

 

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Imprisonment and Prosecution Based Upon the Violation of an Administratively Imposed Period of Post Release Supervision Gave Rise to Valid False Imprisonment and Malicious Prosecution Causes of Action Against the State

In a lengthy and thorough opinion by Justice Spain, the Third Department determined that the claimant, who was imprisoned and prosecuted based upon an administratively imposed “post release supervision” (PRS) violation, was entitled to summary judgment on his false imprisonment cause of action and had stated a cause of action for malicious prosecution.  The claimant was held in custody and prosecuted after the Court of Appeals had ruled that only the sentencing court can impose a term of post release supervision (Garner v NYS Dept of Correctional Services, 10 NY3d 358 [2008]):

…[C]aimant sufficiently alleged that his confinement was not privileged and it was defendant’s burden to establish that its confinement of claimant after Garner was privileged; defendant failed in the Court of Claims to produce a Division of Parole arrest warrant or a court order so as to demonstrate their validity or that the arrest or confinement of claimant was privileged … .   Further, to clarify, claimant does not challenge his arrest prior to Garner but, rather, premises his claims on his continued detention and reincarceration – after Garner – for a parole violation based upon an administrativelyimposed PRS term that Garner clearly held was invalid, i.e., he raises a claim for false imprisonment and not for false arrest. * * *

…[D]efendant does not have immunity for the actions of its parole officials.  To be sure, inherently discretionary parole decisions of government officials have been recognized to be quasi-judicial decisions entitled to absolute immunity … .  “Where, however, the official has stepped outside the scope of his [or her] authority and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are . . . quasi-judicial in nature” … .  That is, “[t]here is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter.  The former is privileged, the latter is not”… . * * *

We similarly conclude that claimant stated a cause of action for malicious prosecution.  To make out a claim for malicious prosecution, claimant must establish: “(1) the commencement or continuation of a criminal proceeding by the defendant against the [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” …. .  … On the second prong, claimant need not “demonstrate innocence” of the parole violation in order to satisfy that favorable termination prong; rather, claimant can satisfy it by showing that “there can be no further prosecution of the [alleged parole violation]” … .  We believe it self evident, under the facts here and despite the lack of state law on point, that defendant could not, after Sparber and Garner, ever lawfully prosecute claimant on a parole violation that occurred before those decisions, where the PRS in effect at the time of the alleged violation was imposed by DOCS and was, as such, a nullity… Moulton v State of New York, 515096, 3rd Dept 12-26-13

 

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In a Neglect Proceeding, the Review of Sealed Documents by the Evaluating Psychologist Required that His Testimony Be Entirely Discounted

In a neglect proceeding, the Third Department, in the full-fledged opinion by Justice Spain noted the evaluating psychologist’s testimony must be entirely discounted because the psychologist reviewed sealed documents to which he should not have had access:

…Steven Silverman, [the evaluating psychologist] reviewed not only the subject reports, but also many of the other juvenile delinquency records that were properly – and undeniably – sealed under Family Ct Act § 375.1.  Although it is unclear how Silverman came into possession of the sealed materials, his review of such documents plainly was error – as was his review of the subject reports, the latter of which Family Court and counsel expressly agreed would not be made available to him.  As Silverman clearly reviewed a multitude of documents to which he should not have had access, and as there is no meaningful way to gauge the impact of those materials upon the opinion he ultimately rendered, we agree with respondent that Silverman’s testimony should be discounted in its entirety.  Matter of Dashawn Q…, 2013 NY Slip Op 08565 [114 AD3d 149], 3rd Dept 12-26-13

 

 

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Family Court Erred in Allowing Court Appointed Special Advocates Access to Confidential Records and Proceedings

The Third Department, in a full-fledged opinion by Justice Spain, determined Family Court had improperly allowed Court Appointed Special Advocates (CASA) to have access to confidential records and proceedings concerning children who were in foster care.  The court first noted that CASA was not a party and therefore did not have the right or capacity to seek relief from the court.  After finding that the petitioner (Social Services) did not have the power to direct the foster parents not to speak with CASA volunteers, the Third Department held that Family Court had erred in allowing CASA access to certain confidential records and proceedings:

With regard to Family Court’s unqualified directive that a CASA volunteer be permitted to attend all family service plan review meetings, and requiring petitioner to provide notice thereof, we find that the court exceeded its authority.  Service plan reviews, which are aimed at ultimately achieving permanent discharge of children in foster care, require petitioner “to review progress made through implementation of the previous service plan, identify issues of concern and suggest modifications that impact on and inform the development of a new service plan for the case” (18 NYCRR 430.12 [c] [2] [i]; see 18 NYCRR 428.9).  The reviews will often entail in-depth sharing, discussion and consideration of confidential information, such as medical and mental health information of the children or parents and reports of abuse and maltreatment… . * * *

Family Court lacked the authority to direct petitioner to “provide [the] CASA [volunteer] with the names of individuals and agencies providing mental health services to the children” subject only to the “providers, using their own professional judgment,” determining “what if any information regarding the children may be shared with [the] CASA [volunteer].”  Mental Hygiene Law § 33.13 (c) prohibits the release of mental health records contained in foster care records except in limited circumstances, including “pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13 [c] [1]). The court here expressly declined to make such a finding, and petitioner is statutorily bound to keep such information confidential… .  Matter of Evan E…, 516055, 3rd Dept 12-26-13

 

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Burden Is on Defendant in SORA Reclassification Proceeding/Fact that Defendant Was Not Provided With All the Documents Reviewed by the Board Did Not Violate Due Process

In a SORA reclassification proceeding, the Third Department, over a dissent, determined the defendant was not deprived of due process by the SORA court’s denial of an adjournment for the purpose gathering all the documents reviewed by the Board of Examiners of Sex Offenders in making its updated recommendation.  The Third Department noted that, unlike in the initial SORA proceeding where the burden of proof is on the People, in a reclassification proceeding the burden is on the defendant:

Correction Law § 168-o (2) provides a sex offender who is required to register pursuant to SORA with the opportunity to periodically seek a downward modification of his or her risk level classification.  However, the burden falls upon the sex offender to establish by clear and convincing evidence that a modification is warranted (see Correction Law § 168-o [2]), and the trial court’s determination will not be disturbed absent an abuse of discretion… . * * *

We do not take issue with the argument that defendant was entitled to discovery of the materials in question.  However, all discovery is subject to certain limitations and the court has “considerable discretion to supervise the discovery process” … .  In our view, the question before us distills to whether County Court abused its discretion in refusing to adjourn the hearing in order for defendant to belatedly gain access to the requested documents. In this regard, County Court’s decision to deny defendant’s request must be evaluated with full consideration of the attendant circumstances before the court, including the timeliness thereof …, and we cannot agree that reversal is required based solely on the fact that defendant did not obtain the requested materials prior to the hearing. People v Lashway, 514859, 3rd Dept 12-26-13

 

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Administrative Decision Maker, Who Had Previously Ruled Against Petitioner/Employee in Disciplinary Proceedings, Should Have Been Disqualified from Reviewing Hearing Officer’s Recommendations Made in a Related Subsequent Proceeding

The Third Department, over a partial dissent, determined the mayor (Bertoni), who ruled against the petitioner/employee on disciplinary charges, should have been disqualified from reviewing the hearing officer’s recommendations made in a subsequent PERB hearing.  After noting petitioner could properly be punished for testifying falsely in the hearings, the Third Department explained:

Reversal is required … because Bertoni should have been disqualified from reviewing the Hearing Officer’s recommendations.  To be sure, an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges … .  However, where, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required… . Botsford v Bertoni, 516709, 3rd Dept 12-26-13

 

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Planning Board’s Determination Subdivision Was Exempt from Conservation Measures Under “Grandfathering” Laws Upheld

The Third Department determined the town planning board’s approval of a final subdivision plan was proper.  The petitioners challenged the approval arguing, in part, that the town’s repeated renewal of grandfathering provisions (under which the subdivision plan was approved) was unlawful. Under the grandfathering provisions, the subdivision was deemed exempt from certain conservation measures. The Third Department disagreed:

“A town’s zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, ‘beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'” … .  While “[z]oning laws must be enacted in accordance with a comprehensive land use plan” … to establish compliance, “respondents need only show that the zoning amendment was adopted for ‘a legitimate governmental purpose'” and the amendment will not be considered arbitrary unless “‘there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'” … .  … As set forth in the comprehensive plan, the Town’s primary concerns included “ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area’s natural resources and remaining open spaces.”  The adoption of the initial grandfathering provision clearly evidenced and furthered the Town’s interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements … .

Petitioners have not shown that, under the circumstances here, the challenged extensions … were inordinately lengthy as to render them “arbitrary and unreasonable or otherwise unlawful”… .  Matter of Birchwood Neighborhood Association v Planning Board of the Town of Colonie, 516284, 3rd Dept 12-19-13

 

Attorney Penalized for Making a Baseless Request for a Change of Venue

The Third Department upheld the Board’s determination that counsel should be penalized for making a baseless request for a change of venue (closer to the attorney’s office):

Workers’ Compensation Law § 114-a (3) (ii) provides that “[i]f the [B]oard . . . determines that the proceedings in respect of [a claim for compensation], including any appeals, have been instituted or continued without reasonable ground[,] . . . reasonable attorneys’ fees shall be assessed against an attorney . . . who has instituted or continued proceedings without reasonable grounds.”  We will not disturb the Board’s imposition of a penalty for a violation of that statute so long as the determination is supported by substantial evidence … .  The Board considers a request for change of venue, which is a procedural motion, to constitute a proceeding for purposes of the statute.  Counsel was previously warned that what she cited as a “Board Rule” was actually a provision of a private legal treatise, that it did not accurately reflect the law or Board policy on venue, and that any further change of venue request filed based on that reasoning and citation “will be deemed a proceeding instituted without reasonable grounds and subject to the imposition of penalties under” the statute. Matter of Banton…, 516574, 3rd Dept 12-19-13

 

It May Be an Abuse of Discretion for the Board to Refuse to Review an Untimely Application Raising a Jurisdictional Issue/Board May Be Barred from Reopening a Closed Claim More than Seven Years After the Accident

The Third Department determined the Workers’ Compensation Board should have considered the employer’s untimely application for review because the employer raised a jurisdictional issue. The court noted that the Board may barred from reopening closed claims after more than seven years have elapsed since the accident:

“The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time . . .” … .  Accordingly, “[w]hile the Board enjoys broad discretion to reject a late application for review,” its refusal to consider an untimely challenge to its jurisdiction may constitute an abuse of discretion … .

While the Board generally retains continuing jurisdiction over workers’ compensation claims, it is barred from reopening a claim “that has been . . .  disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, [where there has been] a lapse of seven years from the date of the accident” (Workers’ Compensation Law § 123;…). Workers’ Compensation Law § 123 accordingly acts to “prevent a brand new attempt to prove up a stale claim” …, and deprives the Board of “power and jurisdiction” over such an attempt (Workers’ Compensation Law § 123…).  Given the age of the claim here and the fact that it was marked closed in 1995, the employer plausibly argues that the Board lacked jurisdiction to reopen the present claim.  Matter of VanAusdle, v NYC Police Department, 515592, 3rd Dept 12-19-13

 

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No Constitutional Issue Raised by Claim that County Is Paying Too High a “Mobility Tax” Because It Does Not Receive as Much Transit Service as Other Counties Paying the Same Amount

The Third Department affirmed the dismissal of two causes of action brought by a county challenging a “mobility tax” imposed upon counties served by the Metropolitan Transportation Authority (MTA).  The county alleged the mobility tax was disproportionately high because it did not receive as much service as other counties paying the same amount:

The gravamen of both claims is that the funding provided to the MTA by the County is disproportionately high when compared to the transit services received by it in return.  The MTA undoubtedly provides services to the County and its residents, however, and “[e]ven a ‘flagrant unevenness’ in application” of the financing scheme used to fund the MTA is constitutionally permissible … .

Without more, the fact that the County purportedly receives “fewer benefits from the [MTA] than those received by other[s] . . . is insufficient to warrant the relief requested” … .  Plaintiffs have not pointed to any constitutional or statutory provision that is violated by this alleged misallocation of resources and, as such, the sixth and seventh causes of action present nothing more than a nonjusticiable and impermissible attempt “to substitute judicial oversight for the discretionary management of public business by public officials” … .  Supreme Court thus acted properly in granting the MTA defendants’ motion for summary judgment.  Vanderhoff… v Silver, 516180, 3rd Dept 12-19-13

 

 

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