The Third Department upheld a finding by the New York State Division of Human Rights that petitioner, the owner of a restaurant, had created a hostile work environment and had retaliated against two female employees by firing them after they filed sexual harassment complaints. Matter of West Taghanic Diner, II, Inc v NYS Division of Human Rights, 514133, 3rd Dept 4-4-13
The Third Department determined that a pit bull had acted in self-defense when attacked by another dog which broke free of its leash and, on that basis, reversed the “dangerous dog” finding. The Third Department noted that a “dangerous dog” finding should not be based solely on the breed of the dog:
The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that “‘there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal'” … . Matter of People … v Shanks, 514029, 3rd Dept 4-4-13
DOG BITE
In holding that a second summary judgment motion which addressed deficiencies in the first summary judgment motion should not have been entertained, the Third Department wrote:
…[W]e agree with plaintiff that the Town’s summary judgment motion should not have been considered. “‘[M]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause'” …. Here, the Town’s second motion for summary judgment was made solely upon the added affidavit of its Highway Superintendent, which was submitted to address the deficiencies in the Town’s proof as outlined by our prior decision. However, such affidavit was not new evidence, as no reason was given why it could not have been submitted with the initial motion … . For the same reason, this evidence could not have been a valid basis to grant renewal of the first summary judgment motion … . We discern no valid purpose for allowing a successive summary judgment motion that is based solely upon a party’s belated attempt to remedy its inadequate initial proffer, without any valid explanation as to why the additional evidence was not offered in the first instance. Keating v Town of Burke, 515400, 3rd Dept 4-4-13
The Third Department determined the “prompt outcry” exception to the hearsay rule applied to a very young victim who complained about the incident after several days:
Under the prompt outcry rule, “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place” … . “‘[P]romptness is a relative concept dependent on the facts — what might qualify as prompt in one case might not in another'” …. Here, the sexual contact occurred over a weekend during which the victim was in the care of defendant’s mother. The victim returned to his mother’s care on a Sunday and disclosed the events to her on the following Friday. Considering the victim’s young age and the familial relationship between the victim and defendant, we agree with County Court’s determination that the hearsay statements fell within the prompt outcry rule …, and the court provided an appropriate instruction limiting the use of the testimony … . People v Lapi, 104623, 3rd Dept 4-4-13
The Third Department determined the failure to request a jury charge on venue waived any related appellate issue:
Initially, to the extent that defendant contends that the People failed to prove by a preponderance of the evidence … that the underlying crimes occurred within the geographical jurisdiction of Franklin County, we note that “unlike territorial jurisdiction[,] which goes to the very essence of the State’s power to prosecute,” questions regarding geographical jurisdiction or venue are waivable … . Accordingly, inasmuch as defendant failed to request a jury charge on venue, she waived any challenge in this regard … . People v Beauvais, 104590, 3rd Dept 4-4-13
The Third Department determined the following scenario legitimately led to the defendant’s arrest under the DeBour criteria:
The officers arrived at the scene and observed approximately eight people sitting on the steps. As the officers approached the group, one of them – later identified as defendant– abruptly stood up and attempted to enter the building, but could not gain entry because the door was apparently locked. One of the officers followed defendant up the steps, placed a hand on defendant’s shoulder and asked defendant why he was in a hurry. Defendant turned around, shoved the officer, said that he was “past curfew” and, after a brief struggle, ran down the steps and took off running down the street. People v Morris, 104201, 3rd Dept, 4-4-13
STREET STOPS
In reversing the Surrogate’s Court verdict, the Third Department, in a decision by Justice Spain, determined that the existence of a confidential relationship with the decedent is a question of fact for the jury (Surrogate’s Court determined the existence of the relationship as a matter of law). In addition, because the matter is to be retried, the Third Department included a useful discussion of how the Dead Man’s Statute (CPLR 4519) should be applied:
Under the doctrine of “‘constructive fraud,'” where a confidential relationship exists between two parties to a transaction “‘such that they were dealing on unequal terms due to one party’s weakness, dependence or trust justifiably reposed upon the other and unfair advantage is rendered probable,'” the burden of proof with respect to allegations of undue influence will be shifted to the stronger party to show, by clear and convincing evidence, that no undue influence was used … In determining whether a confidential relationship exists, “the existence of a family relationship does not, per se, create a presumption of undue influence; there must be evidence of other facts or circumstances showing inequality or controlling influence” … ..The existence of such a relationship will ordinarily be a question of fact … . * * *
The [Dead Man’s] statute precludes an interested party from being “examined as a witness in his [or her] own behalf or interest . . . concerning a personal transaction or communication between the witness and the deceased person” (CPLR 4519 …). Given that the “purpose of the rule is ‘to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court’…, it will not preclude any testimony elicited by the representative of the estate, nor does it preclude testimony of transactions between decedent and a non-interested third party …. Further, the statute’s protections with regard to a particular transaction may be waived where the representative “testifies in his [or her] own behalf concerning a personal transaction of his adversary with the deceased” or when he or she “elicits testimony from an interested party on the personal transaction in issue” … . Matter of Nealon, 513733, 3rd Dept 3-28-13
In a decision by Justice Spain, the Third Department reversed the dismissal of a complaint alleging that solar panels installed on defendants’ residential property violated a restrictive covenant. The Third Department wrote:
We reach a different conclusion, however, with respect to plaintiff’s assertion that the panels violate the second restrictive covenant in the deeds, which states: “Said premises shall not be used for the storage of building materials, automobiles or automobiles parts, nor shall any nuisances be maintained on said premises, which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants” (emphasis added). We find that plaintiffs have alleged facts that could support a cause of action based on violation of this covenant. Specifically, we hold that it was sufficient for plaintiffs to allege that the installation of six, 14-foot tall, 8-foot wide solar panels within a neighborhood that carries many aesthetic restrictions is, within the meaning of the restrictive covenant, a nuisance “which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants.” Faler v Haines, 515349, 3rd Dept 3-28-13
In a decision by Justice Rick, the Third Department affirmed the adoption of a child without the consent of the biological father:
A biological father’s consent to adopt a child over six months old who was born out of wedlock is required only if the father “maintained substantial and continuous contact with the child as manifested by” payment of reasonable child support and either monthly visitation or regular communication with the child or custodian (Domestic Relations Law § 111 [1] [d]).”Only after the [biological] father establishes his right of consent to the adoption, by satisfying both the support and communication provisions of the statute, does the court proceed to determine whether he has forfeited that right by evincing ‘an intent to forego his . . . parental . . . rights and obligations'” as outlined in Domestic Relations Law § 111 (2) (a)… . Matter of John Q v Erica R, 514216, 3rd Dept 3-28-13
The Third Department, in a decision by Justice McCarthy, determined Family Court improperly amended the allegations in a neglect petition:
On this record, summary judgment was improperly granted. Significantly, the petition as filed only alleges that respondent neglected the children as a result of the events surrounding respondent’s March 2011 arrest. Nevertheless, Family Court granted the petition based on “amplified” allegations of neglect that it found related to the father’s alleged untreated mental illness. No amended petition was filed nor was respondent given an opportunity to amend his answer. While a court may amend the allegations in a neglect proceeding “to conform to the proof[,]. . . in such case the respondent shall be given reasonable time to prepare to answer the amended allegations” (Family Ct Act § 1051 [b] …). Matter of Aiden XX, 514147, 3rd Dept 3-28-13
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