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Plaintiff Was Unable to Demonstrate Landlord Had Knowledge of Presence of Lead Paint​

Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified the dismissal of the lead-paint-injury complaint.  The Third Department explained:

“[I]n order for a landlord to be  held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” ….To  establish constructive notice in the context of a lead paint case, the plaintiff must 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” … . Hines v Double D and S Realty Management Corp, 515635, 3rd Dept, 5-2-13

 

Grant of Visitation to Grandmother Reversed

In reversing Family Court’s grant of visitation rights to the children’s grandmother (more than what the mother wanted to allow), the Third Department wrote:

Where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation with their grandchildren where, as a threshold matter, they can establish circumstances in which “equity would see fit to intervene,” i.e., that equitable circumstances exist (Domestic Relations Law § 72 [1]…). * * * Upon our review of the testimony, we conclude that petitioner  did  not  establish  equitable  circumstances  that  justify according her standing to force the mother to accept visitation outside parameters  within which  she is comfortable as a fit and responsible parent … .  “[C]ourts should  not  lightly intrude on  the family  relationship  against  a  fit parent’s  wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one” …  Matter of Hill v Juhase, 514036, 3rd Dept, 4-25-13

 

 

Social Services Motion to Be Relieved of Obligation to Make Efforts to Return Child to Father Granted Even Though Neglect Finding Against Mother Only

Family Court granted a motion by social services to be relieved of its obligation to make further reasonable efforts to return the child to the father.  The child was in foster care after a neglect proceeding against the mother.  In holding that the motion was properly brought and granted, even though a finding of neglect had been made only against the mother, the Third Department wrote:

 A  social services agency may  move  to be  relieved of its obligation to undertake  reasonable efforts to return a child to his or her home  “[i]n conjunction with, or at any time subsequent to, the filing of” an abuse or neglect petition (Family Ct Act §  1039-b  [a]). Here, while a neglect petition was filed solely against the mother, contrary to the father’s contention, nothing  in Family Ct Act §  1039-b  limits its scope to the respondent(s) named  in the underlying petition. Moreover, to infer such a limitation would undercut the purpose of the statute, which was intended to promote the health and safety of the child by expediting permanency planning… .  Matter of Jayden QQ., 513777, 3rd Dept, 4-25-13

 

Misbehavior Report Did Not Supply Sufficient Notice of Alleged Offense

In annulling a disciplinary finding, the Third Department held the misbehavior report did not provide sufficient notice of the alleged offense:

Petitioner contends that his due process rights were violated because the misbehavior report failed to comply with the particularity requirements of 7 NYCRR 251-3.1 (c). This regulation provides that a misbehavior report must set forth “the date, time and place of the offense, . . . the disciplinary rule alleged to have been violated and . . . the factual basis for the charge with enough particularity to enable the inmate to prepare a defense” (… 7 NYCRR 251-3.1 [c]). Here, the misbehavior report, which was prepared by the correction officer who tested the substance, simply stated that a substance given to him by another correction officer tested positive for marihuana. Significantly, it did not indicate that the officer who gave him the substance obtained it from petitioner’s cell nor did it provide any details as to exactly where the substance was found.  To add to the confusion, the report listed the location of the incident as the “chart office.”  Matter of Simmons v Fischer, 514873, 3rd Dept, 4-25-13

 

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SORA Proof Burdens Explained

The Third Department noted the different proof burdens for a SORA classification hearing versus a modification hearing:

The People concede that defendant is entitled to a new hearing because Supreme Court treated the 2005 rehearing as one for modification, as opposed to classification (compare Correction Law § 168-n, with Correction Law § 168-o).   As the People now acknowledge, they bore the burden of establishing the determination sought by clear and convincing evidence … .  Inasmuch as the record here reflects that the burden was placed on defendant to demonstrate sufficient evidence warranting a departure from the risk level III classification (see Correction Law § 168-o [2]), we remit for a new hearing … . People v Middlemiss, 511311, 3rd Dept, 4-25-13

 

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Convictions Based Entirely Upon Confession Reversed; Error to Allow Experiment in Evidence; Proof of Victim’s Helplessness Sufficient

In this sexual-crimes case, the Third Department discussed (among other issues): (1) the application of speedy trial rules when an initial indictment is dismissed and then charges stemming from the same incident are brought more than six months later in a second indictment; (2) the sufficiency of proof of the victim’s helplessness (intoxication); and (3) the inadmissibility of an experiment (opening a door with a credit card to demonstrate how defendant could have entered the house) which had nothing to do with the trial evidence.  All but two of the convictions were affirmed.  In reversing the two convictions which were based entirely on the defendant’s confession, the Third Department wrote:

We find that defendant’s convictions of criminal sexual act in the first degree must  be  reversed. “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged  has been  committed”  (CPL 60.50). While this additional proof “need  not corroborate every detail of the confession” …, both  of defendant’s criminal sexual act convictions were based solely upon his uncorroborated admissions that he  performed  oral sex on the victim. Defendant’s presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether  the crimes  occurred  at all. As there was no corroborating proof “of whatever weight,” these charges must be dismissed… . People v Bjork, 104014, 3rd Dept, 4-25-13

 

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Fact that Defendant Was Seen With a .25 Caliber Handgun Two and a Half Months Before Charged Shooting Allowed In Evidence to Prove “Identity”

The defendant was convicted of shooting the victim with a .25 caliber handgun.  Under Molineux, the prosecution was allowed to present evidence that the defendant, two and a half months before, was seen brandishing a .25 caliber handgun.  The trial court determined this “prior crime” evidence was admissible to prove the identity of the shooter.  The Third Department affirmed with a strong dissent.  The quotation below, which is from the dissent, outlines one of the elements of a Molineux analysis of prior-crime evidence to prove identity:

[THE FOLLOWING QUOTATION IS FROM THE DISSENT]

The mere fact that defendant was allegedly seen with a .25 caliber weapon on an occasion over two months prior to the crime does not reveal any unique and distinctive modus operandi, nor a “distinctive repetitive pattern”  … . The only behavior described was the act of pulling out a gun – there is nothing unique or distinctive about this act, standing alone – and the weapon was not fired during the alleged earlier incident. Defendant’s mere presence in the same place twice is certainly not unusual, as other people were also present on both occasions. There was simply no evidence that might be considered “‘so unique that the mere proof that . . . defendant had committed a similar act would be highly probative of the fact that he committed the one charged'” … .  People v Myers, 104004, 3rd Dept, 4-25-13

 

 

 

Independent Reason for Incarceration Precludes Habeas Corpus Relief

In affirming the dismissal of a habeas corpus petition, the Third Department noted that even where the basis for the petition is valid (here there was no preliminary hearing for a parole violation) habeas relief is not available if there is an independent basis for continued incarceration (here an indictment for the offense underlying the parole violation):

Regardless of the merits of petitioner’s claim that he was deprived of a preliminary hearing, an independent basis for his parole revocation exists given his conviction upon the count charged in the indictment (see Executive Law § 259-i [3] [d] [iii]…). Petitioner is thus not entitled to immediate release, rendering habeas corpus relief unavailable … .  People ex rel Wiggins v Schiff, 515008, Third Dept 4-25-13

 

Denial of Benefits Affirmed In Spite of Conflicting Medical Evidence

In affirming the denial of (World Trade Center) accidental disability retirement benefits to a police officer, the Third Department explained how to deal with conflicting medical opinion.  Here the officer presented evidence he suffered from post traumatic stress disorder stemming from the World Trade Center attacks, and the state presented evidence he suffered from treatable mild depression:

“In situations where, like here, there are conflicting opinions as to whether  petitioner is permanently  disabled, it is well  settled that  [the  Comptroller]  is vested with  the  authority to resolve conflicts in the medical evidence and to credit one expert’s opinion over that of another” ….   Inasmuch as the Retirement System’s expert provided a rational and fact-based opinion, founded upon an examination of petitioner and a review of his medical records, the Comptroller’s determination is supported by substantial evidence and will not be disturbed, despite evidence in the record that might support a contrary result … .  Matter of Cantelmo v NYS Comptroller, 515641, 3rd Dept, 4-25-13

 

 

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Verdict In Favor of Physician Set Aside in “Breach of Implied Covenant of Trust and Confidence” Case

The Third Department set aside a jury verdict in favor of defendant, plaintiff’s former physician.  The lawsuit alleged a cause of action for “breach of the implied covenant of trust and confidence inherent in the patient-physician relationship” based upon defendant’s breach of “her duty of confidentiality” when she reported the details of a hospital visit with plaintiff to plaintiff’s wife.  The confidential information apparently at least implied plaintiff posed a danger to plaintiff’s wife [Juric].  In setting aside the verdict, the Third Department wrote:

In our view, the record does not contain proof establishing that defendant had a reasonable basis to believe that plaintiff posed an actual, current, imminent  threat to Juric as required to sustain her affirmative defense pursuant to Supreme  Court’s jury charge [the affirmative defense was “justification”]. Thus, even according defendant every favorable inference and considering the facts in the light most favorable to her …, we agree with plaintiff that there was “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence  presented  at trial” … Juric v Bergstraesser, 515333, 3rd Dept, 4-25-13

 

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