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Imposition of Separate and Contradictory Permanency Goals for Father and Mother Disallowed

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

 

 

 

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Negligence and Fraudulent Misrepresentation Causes of Action Can Not Be Based on Allegations of Breach of Contract 

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

 

 

Driver Who Had Right of Way But Allowed Another Driver to Turn Can Be Liable to Motorist Struck by Turning Car​

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

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No “Negligent Supervision” Cause of Action Against School Based on Student Attacking Another Student

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

 

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No Negligence Based on Defendant’s Dog Barking [Which Allegedly Caused Plaintiff to Fall from Her Horse as the Horse Broke Into a Run]

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

 

Emergency Doctrine Not Applicable to Striking Plaintiff’s Decedent’s Body in Roadway

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

 

 

Res Ipsa Loquitur Proof Requirements Not Met Re: Cause of Fire

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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Only Personnel Records Used to Evaluate Police Officer’s Performance Protected from Disclosure​

In a full-fledged opinion by Justice Peters, the Third Department determined that the records of a hit-and-run accident involving a state trooper, sought in a Freedom of Information Law (FOIL) request made by a newspaper journalist, may be protected by the Civil Rights Law 50-a if they are personnel records used to evaluate performance toward continued employment, even after employment has been terminated.  In this particular case, however, the Third Department ruled that the respondent (police department) failed to demonstrate that the records sought fell squarely within the Civil Rights Law exception and the motion to dismiss should not have been granted.

Respondent’s motion to dismiss must nevertheless be denied because, at this juncture, it has failed to demonstrate that the requested records “fall[] squarely within the exemption”….   Here, petitioners’ FOIL request sought all “records, in any form” that “relate[d] to” the off-duty incident involving Beardsley. In reply, respondent withheld all of the requested records on the basis of a blanket invocation of Civil Rights Law § 50-a, without describing any of the documents withheld or offering a specific basis for the claimed exemption … .  In the Matter of Hearst Corporation… v New York State Police, 515693, 3rd Dept, 5-30-13

 

 

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“Hose Company” Not Entitled to Payment of Tax Monies to Fire Department

The Third Department determined that a “hose company” was not part of the fire department and thus was not entitled to the payment of tax monies slated for the fire department:

The members of Citizens Hose are not trained to perform interior or exterior firefighting and, on the rare occasions when they are paged to assist the fire department, the few members who respond are limited to performing auxiliary services such as coiling hoses, directing traffic and  cleaning equipment. The evidence at trial established that whenever  the fire department  requires assistance in actually fighting a fire, it makes  a mutual aid call to volunteer fire companies in surrounding communities. Citizens Hose is not part of the mutual aid call system.  Krol … v Porter, 516002, 3rd Dept, 5-30-13

 

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“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(1) The police must have reasonable grounds to believe that there is an emergency at hand  and an immediate  need  for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

 

 

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