In the course of a decision awarding partial summary judgment to the defendant, the Third Department noted that “this Court has the authority to grant summary judgment to a nonappealing party” and did so with regard to a nonappealing defendant as well. Shree Shiv Shakti Corp… v Khalid Properties, LLC, 515810, 3rd Dept 5-30-13
After Family Court ruled it did not have jurisdiction to issue a judgment for child support arrearages, the Third Department determined that the court did in fact have jurisdiction. In a full-fledged opinion by Justice Peters, the Third Department wrote:
While “Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute” …, it is empowered “to determine applications to modify or enforce judgments and orders of support” … .In that regard, petitioner [child support collection unit] is authorized to commence violation proceedings “on behalf of persons” who receive child support pursuant to a court order … . * * *
Petitioner thus acted well within its statutory authority in commencing this proceeding to enforce a child support order that respondent had “fail[ed] to obey,” and Family Court likewise had subject matter jurisdiction to consider it… . In the Matter of Chemung County Support Collection Unit…v Greenfield, 515864, 3rd Dept, 5-30-13
The Third Department reversed Family Court’s dismissal of the biological mother’s petition for custody of a child who had been placed with her sister with the biological mother’s consent. The Third Department determined the mother’s prior consent to custody did not preclude her petition and the respondent, as a nonparent, bore the responsibility to demonstrate extraordinary circumstances warranting her custody of the child. The Third Department noted:
…[W]hile “no parent has an absolute right to custody of a child . . . it is settled law that, as between a biological parent . . . and a nonbiological parent . . ., the parent has a superior right that cannot be denied unless the nonparent can establish that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances'” … . In the Matter of Evelyn C …, 514179, 3rd Dept, 5-30-13
In reversing Family Court, the Third Department determined the imposition of separate and contradictory permanency goals violated Family Court Act 1089 [d] [2] [i]:
At the end of the hearing, Family Court continued the children’s placement and approved petitioner’s goal of reunification as to the mother only. As to the father, the court disapproved the goal of reunification, directed petitioner to commence a permanent neglect proceeding to terminate his parental rights and suspended his supervised visitation. * * *
Family Court erred by imposing separate and contradictory permanency goals on the mother and father. Upon concluding at the end of a permanency hearing that a child is not to be returned immediately to a parent, the court must determine whether the permanency goal should be approved or modified and may select among five statutory permanency goals (see Family Ct Act § 1089 [d] [2] [i]; …). These “goal[s] are listed as alternatives, with the court to choose only one. Nothing in the statute indicates that the court may select and impose on the parties two or more goals simultaneously” … . The statute contemplates the commencement of termination proceedings against a parent only when the permanency goal is “placement for adoption” (Family Ct Act § 1089 [d] [2] [i] [B]). To require such proceedings as to one parent where, as here, the permanency goal is reunification with the other parent is not only inconsistent with the statutory goals but also with the overall goal of permanent neglect proceedings, to further the children’s best interests by freeing them for adoption when positive parental relationships no longer exist … . In the Matter of Julian P, 512450, 3rd Dept, 5-30-13
In determining Supreme Court should have dismissed the negligence and fraudulent misrepresentations cause of action in a complaint based upon breach of contract, the Third Department wrote:
“[A] simple breach of contract claim is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . .[, which] legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract” …. Plaintiffs have not demonstrated any special relationship or legal duty aside from the contractual relationship…. The negligence and fraudulent misrepresentation claims are based upon the same alleged wrongful conduct as the breach of contract claim, rendering them duplicative … . Rorok v Moore’s Flatwork…, 515459, 3rd Dept, 5-30-13
The defendant stopped in the roadway when she had the right of way and gestured to an on-coming driver to make a left turn in front of her. Plaintiff passed the defendant on the right and collided with the car making the turn. The Third Department determined defendant’s motion for summary judgment should not have been granted:
When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances; this duty is owed to pedestrians and other motorists and passengers as well as to the person who is being signaled … . Dolce v Sheridan, 515766, 3rd Dept, 5-30-13
TRAFFIC ACCIDENTS
In ruling that the defendant school district’s motion for summary judgment in a “negligent supervision” case should have been granted, the Third Department determined the school district could not have reasonably anticipated the attack of one student upon another. The school personnel had been alerted to the possibility of an impending fight between the two students and had intervened. The school personnel were assured by the student who ultimately attacked plaintiff’s daughter that she did not intend to fight plaintiff’s daughter. The Third Department wrote:
…[A] school district will only be held liable for injuries intentionally inflicted by another student where it is established that the dangerous conduct “could reasonably have been anticipated,” i.e., where school authorities had actual or constructive notice of prior similar conduct on the part of the offending student …. Even where such notice is present and the consequent duty of supervision is breached, the plaintiff must further show that the alleged injury “was a normal or foreseeable consequence of the situation created by the school’s negligence” … .The adequacy of supervision and the existence of proximate cause are generally factual issues for a jury to resolve … .
Regardless of any questions of fact regarding whether enough staff members were present in the hallway to prevent or break up the fight, defendant was entitled to summary judgment because it established that it could not have reasonably anticipated the attack. Conklin v Saugerties Central School District, 515709, 3rd Dept, 5-30-13
Plaintiff was injured when she fell from her horse. The defendant was jogging behind the horse with her dogs. Plaintiff alleged barking caused the horse to break into a canter or a run. The Third Department determined Supreme Court should have granted defendant’s motion for summary judgment. After discussing the principles underlying assumption of the risk in this context and the permissible causes of action based on the behavior of animals, the Third Department wrote:
“The mere act of [walking] . . . in close proximity to an unknown horse, as the complaint alleges, does not present an issue of negligence, as a matter of law” …. In this regard, defendant – who had no prior experience with horses – was walking on a public highway, where she had every right to be (see Vehicle and Traffic Law § 1156 [b]). She slowed down to evaluate the horses and riders ahead of her, and, while she did not stop, she was still 50 yards away when plaintiff and her daughter lost control of their horses. Morever, plaintiffs’ negligence claim also fails because they alleged no facts from which it could be inferred that defendant’s actions, in walking on a public street or otherwise, were the proximate cause of plaintiff’s injuries … . Filer v Adams, 515403, 3rd Dept, 5-30-13
The Third Department determined summary judgment should not have been granted to the defendant based upon the emergency doctrine. Defendant struck the decedent’s body which was in the roadway. Although defendant slowed when she saw the brake lights and flashers on vehicles ahead of her, she continued driving at about 50 miles per hour:
We are not persuaded that these facts demonstrate, as a matter of law, that defendant was confronted with an emergency situation that left her with little time for deliberation or that her reaction was reasonable such that there was nothing she could have done to avoid the accident. Notably, “it is not uncommon for motorists to encounter debris or other hazards in the roadway” …and, here, by defendant’s own testimony, she had notice from at least 20 or 30 car lengths away that something out of the ordinary was happening on the highway ahead …. Further, there is also deposition testimony of the front seat passenger in codefendants’ vehicle, which had arrived at the scene and first struck either decedent or his motorcycle. This witness testified that, as decedent was lying in the roadway, other vehicles stopped at the scene without striking him, and at least one other vehicle passed through the scene without incident. In light of this testimony, “a question arises as to whether defendant should have anticipated and been prepared to deal with the situation confronting [her]” and whether her actions were reasonable under the circumstances… . Hallenbeck …v Smith…, 515155, 3rd Dept, 5-30-13
A fire apparently started in the vicinity of a gas grill resulting in the destruction of an apartment building. In affirming summary judgment granted to the defendants, the Third Department noted that an unsigned report from the fire department was properly ignored by the motion court and plaintiff was not entitled to an inference of negligence based on the doctrine of res ipsa loquitur:
…[P]laintiff has not established its entitlement to an inference of negligence pursuant to the doctrine of res ipsa loquitur. To do so, plaintiff was required to demonstrate, among other things, that the fire was one that ordinarily would not have occurred in the absence of defendants’ negligence…. While plaintiff need not have eliminated every alternative explanation for the event, it was required to demonstrate that the probability of other causes was so reduced that defendants’ negligence was more likely than not to have caused the injury…. In view of plaintiff’s failure to proffer any admissible evidence – or, indeed, any evidence whatsoever based upon more than pure speculation – that negligence was a factor in the cause of the fire, plaintiff has not met its burden of demonstrating that res ipsa loquitor applies … . 92 Court Street…. v Monnet, et al, 514458, 3rd Dept, 5-30-13
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