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Second Summary Judgment Motion to Address Deficiencies in First Motion Should Not Have Been Entertained

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

 

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“Prompt Outcry” Exception to Hearsay Rule Applied to Complaint Made After Several Days

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

 

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Failure to Request Jury Charge on Venue Waived Appeal of the Issue

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

 

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DeBour Criteria Met By Facts Leading to Arrest

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

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Whether a Confidential Relationship Existed With Decedent Is a Question of Fact for the Jury; Application of Dead Man’s Statute Explained

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

 

Question of Fact About Whether Solar Panels Violate a Restrictive Covenant Precluded Dismissal of Complaint 

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

 

No Need for Consent of Biological Father in Adoption Proceeding

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

 

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Court Improperly Amended Allegations in Neglect Petition

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

 

Criteria for Grant of Visitation to Grandparent When Both Parents Alive

In affirming the grant of visitation to a grandparent (where both parents are living), the Third Department, in a decision by Justice Egan, wrote:

Where a grandparent seeks visitation and, as is the case here, both of the child’s parents are living, Family Court first must ascertain whether “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to confer standing … . “An essential part of the standing inquiry is the nature and extent of the existing grandparent-grandchild relationship . . . [as well as] the basis for the parents’ objection to visitation” ….  Should Family Court determine that the grandparent has standing to seek visitation, the question then becomes whether such visitation is in the child’s best interests …. Inasmuch as Family Court had the advantage of assessing the witnesses’ testimony and demeanor firsthand, its credibility determination “should not be set aside if it is supported by a sound and substantial basis in the record” …. Matter of Laudadio, 514069, 3rd Dept 3-28-13

 

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Okay for Expert to Rely On Information from Social Workers Who Are Not Subjected to Cross-Examination

The Third Department, in a decision by Justice Peters, determined that an expert in a custody matter could rely on information provided by caseworkers who where not subject to cross-examination:

Initially, both the mother and the attorney for the children contend that the opinion testimony of Elizabeth Schockmel, the court-appointed forensic psychologist, should have been stricken because her opinion was based in part upon information she obtained from Department of Social Services caseworkers who were not subject to cross-examination.  We disagree. “[T]he professional reliability exception to the hearsay rule . . . enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” … . Here,   Schockmel testified – without contradiction – that information obtained from  collateral sources is commonly  relied upon  within her profession when  conducting a forensic psychological evaluation in the context of a custody proceeding …. Moreover, her opinion was  principally based upon  information she obtained from  her extensive interviews with the mother, father and  children, with the collateral source information serving as but “a link in the chain of data” that assisted her in forming her opinion … . Accordingly,  Schockmel’s expert opinion testimony was  properly admitted.  Matter of Greene v Robarge, 512987, 3rd Dept 3-28-13

 

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