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AT THE TIME OF THE JUVENILE’S ADMISSION TO POSSESSION OF STOLEN PROPERTY THE JUDGE DID NOT INFORM HIM OR HIS MOTHER OF THE EXACT NATURE OF HIS “PLACEMENT OUTSIDE THE HOME OR ITS POSSIBLE DURATION” AS REQUIRED BY FAMILY COURT ACT SECTION 3213(1); ORDER REVERSED (THIRD DEPT).

The Third Department, reversing the juvenile’s admission in this juvenile delinquency proceeding, determined the juvenile and his mother were not adequately informed of the consequences of the admission to possession of stolen property:

… [T]he allocution in which respondent admitted to [possession of stolen property] was fatally defective because Family Court … failed to comply with the requirements of Family Ct Act § 321.3 (1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home . . . for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” … . “Inasmuch as the provisions of Family Ct Act § 321.3 (1) are mandatory and cannot be waived, the order must be reversed” … . Matter of Tashawn MM., 2023 NY Slip Op 03745, Third Dept 7-6-23

Practice Point: At the time of a juvenile’s admission in a juvenile delinquency proceeding, the juvenile must be informed of the exact nature of any “placement outside of the home and its possible duration.” The failure to so inform the juvenile requires reversal of the placement order.

 

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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney. 

… [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with appointing an attorney for the children should there be a hearing before it. Petitioner Lawyers for Children had initially contracted with the Office of Court Administration (hereinafter OCA) respecting voluntary foster care placements and, since the legislative changes in 1999, has consistently represented children in New York City who have been voluntarily placed outside of the home. Similarly, petitioner Legal Aid Society contracted with OCA and receives assignments through New York City Family Court. Petitioner Legal Aid Bureau of Buffalo, Inc., likewise, has contracted with OCA and receives funding to represent children in child welfare matters.

In December 2021, respondent Office of Children and Family Services (hereinafter OCFS) promulgated regulations creating the Host Family Homes program, a system for the temporary care of children by pre-vetted volunteers without resorting to the voluntary placement process in the Social Services Law … . * * * Children cared for by a host family under this program were not entitled to assigned counsel, although they could communicate with an attorney … . * * *

… [P]etitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide … . Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2023 NY Slip Op 03747, Third Dept 7-6-23

Practice Point: Lawyers for Children is contractually obligated to provide attorneys in child welfare matters. Lawyer for Children has standing to challenge the Host Family Homes program which places children in foster care without the participation of attorneys.

 

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THE EVIDENCE THAT DEFENDANT INTENDED TO PURCHASE DEALER QUANTITIES OF COCAINE FROM A DEALER (SANCHEZ) AND COOKED CRACK COCAINE FOR THAT DEALER WAS NOT LEGALLY SUFFICIENT EVIDENCE OF AN INTENT TO ORGANIZE OR LEAD THE DEALER’S DISTRIBUTION NETWORK; CONSPIRACY CONVICTON REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conspiracy to distribute cocaine conviction, determined the conviction was not supported by legally sufficient evidence:

… [D]efendant’s conviction of conspiracy in the second degree based upon the underlying crime of operating as a major trafficker is not supported by legally sufficient evidence. The evidence presented by the People shows only that defendant intended to purchase dealer quantities of cocaine from Sanchez and cooked crack cocaine for Sanchez when requested, but wholly fails to connect defendant to Sanchez’s broader cocaine dealing network, as defendant was not linked to any of the stash houses or the other individuals with whom Sanchez was in contact. Although Penal Law § 220.77 (1) does not contain a defined mens rea term, it is not a strict liability crime (see Penal Law § 15.15 [2]), and its plain language requires proof that defendant engaged in conduct constituting the administration, organization or leadership of a controlled substance organization. The proof offered by the People does not set forth a valid line of reasoning to permissibly infer that this specific intent was met here. While defendant’s purchase of dealer quantities of cocaine from Sanchez and an agreement to cook crack cocaine for him might be sufficient to establish his knowledge of a broader cocaine distribution network … , they are not sufficient to infer that defendant intended Sanchez to administer, organize or lead a controlled substance organization, as the knowledge of such an organization is not equivalent to the intent to control one. People v Lundy, 2023 NY Slip Op 03727, Third Dept 7-6-23

Practice Point: Conspiracy is a specific intent crime. Here the fact that defendant intended to purchase dealer quantities of cocaine from a dealer and cooked crack cocaine for the dealer was not legally sufficient evidence of the intent that the dealer administer, organize or lead a drug organization. The conspiracy conviction was vacated.

 

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THE VOTERS WHOSE ABSENTEE BALLOTS WERE CHALLENGED ON RESIDENCY GROUNDS ARE NECESSARY PARTIES WHO WERE NOT INCLUDED IN THIS PROCEEDING; THE ELECTION LAW PROCEDURES FOR CHALLENGING THE ABSENTEE BALLOTS WERE NOT FOLLOWED; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the voters whose absentee ballots were unsuccessfully challenged on the ground the voters did not meet the village-residency-requirements were necessary parties in this proceeding and the matter had to be remitted to add them and consider whether their absentee ballots are valid:

Viewing Election Law § 5-220 (2) together with Election Law § 9-209, there is no statutory authority, under the circumstances here, permitting a challenge by petitioners to the absentee ballots submitted by the challenged voters. In view of the statutory scheme, the only opportunity for an objection to be lodged during the post-election review of an absentee ballot is after such ballot has been deemed invalid following a review under Election Law § 9-209 (8) (e), which presupposes an initial review under Election Law § 9-209 (2). … [T]he improper registration of a voter is not one of the explicit grounds used to deem an absentee ballot invalid upon the initial review. Even assuming it was a ground, there is still no indication in the record that any review under Election Law § 9-209 (2) has occurred or, more importantly, that any determination under Election Law § 9-209 (8) (e) has been made here by the canvassing authority as to the invalidity of any absentee ballots and that such determination has been objected to — i.e., the statutory predicate for judicial review (see Election Law § 9-209 [8] [e]). There is likewise no explicit authority within Election Law § 9-209 permitting a court to either conduct that review or make that determination in the first instance. Matter of Hughes v Delaware County Bd. of Elections, 2023 NY Slip Op 03431, Third Dept 6-26-23

Practice Point: When absentee ballots are challenged, the voters who submitted the ballots are necessary parties.

Practice Point: Any challenge to absentee ballots must be made in accordance with the procedures described in the Election Law, not the case here.

 

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PLAINTIFF, AN EXPERIENCED MOTOCROSS RIDER, ASSUMED THE RISK OF LOSING CONTROL OF HIS BIKE UPON LANDING AFTER A JUMP; PLAINTIFF WAS AWARE THAT SOME ASPECT OF THE LANDING AREA CAUSED HIM TO LOSE CONTROL OF THE BIKE ON A PRIOR PRACTICE RUN BUT DID NOT INVESTIGATE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined plaintiff, an experienced motocross rider, assumed the risk of injury when using defendant’s motocross track. Plaintiff alleged a pothole where riders landed after a jump was filled with a talcum-powder-like substance which caused him to lose control of the bike. The majority concluded plaintiff was aware of the risk associated with the material used to fill the pothole:

Considering that Fritz [plaintiff] testified that on both jump landings the back end of his bike “kicked up,” that he hit the same pothole and that he had to work to recover the bike, we are satisfied that he was aware of the potential for injury on that jump’s landing … . Fritz v Walden Playboys M.C. Inc., 2023 NY Slip Op 03524, Third Dept 6-29-23

Practice Point: Here plaintiff testified he was aware that some aspect of a jump-landing area of the motocross track caused him to lose control of his bike briefly in a prior practice run but he did not investigate. The majority concluded he therefore assumed the risk associated with a pothole filled with talcum-like powder in the landing area. Plaintiff lost control of the bike in the area of the filled pothole on his second jump.

 

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ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the state was properly found liable for the actions of corrections officers who conducted a strip search of claimant prisoner. The strip search protocol includes having a male inmate lift his testicles and spread his cheeks. Here the corrections officers repeatedly made claimant touch his genitals and then run his fingers along his gums. The officers made claimant do the same after inserting his finger in his anus. Although the officers were committing intentional torts, their actions were deemed to be within the scope of their employment, making the state vicariously liable:

The law is well established that intentional torts may still fall within the scope of employment, and the motivation for such conduct is not dispositive as to defendant’s liability; rather, that factor is but one of several for our consideration pertaining to whether such acts were foreseeable as “a natural incident of the employment” … . Said differently, “where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment”… . Although the correction officers’ actions may have been motivated in part by an intent to humiliate claimant, we disagree with defendant’s assertion that such intent was the sole motivation for each of the commands and that such actions were undertaken without any furtherance of defendant’s business .. . In this respect, the preponderance of the acts performed during the strip frisk and placement into observation did not significantly deviate from the mandates of the directive and were in fact required prior to claimant’s confinement in one-on-one observation. What rendered the incident demeaning, and the reason that claimant has a viable claim, is the product of the sequence in which those acts occurred. Moreover, the potential for such conduct is precisely that which was foreseen in the warnings contained in the directives, which instructed those officers conducting a strip frisk to be mindful of the sensitive nature of the search and to conduct themselves “in a manner least degrading to all involved.” M.K. v State of New York, 2023 NY Slip Op 03268, Third Dept 6-15-23

Practice Point: An employer can be vicariously liable for the intentional torts of employees if the employees were acting within the scope of their employment. Here corrections officers were conducting a required strip search of the claimant prisoner, but they did so in a mean-spirited and deliberately and profoundly degrading manner. The state was deemed vicariously liable for the officers’ intentional torts.

Practice Point: The decision does not specify the intentional torts for which the state was found liable. There is a public policy prohibiting “intentional infliction of emotional distress” claims against governmental entities, so that cause of action may not have been a basis for the state’s liability in this case. The Digest does not have a general “Intentional Torts” category. This decision was placed in the “Intentional Infliction of Emotional Distress” category only because it seems closest to the facts.

 

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THE EMAIL EXCHANGES BETWEEN ATTORNEYS DID NOT CONSTITUTE A VALID SETTLEMENT AGREEMENT AND DID NOT MEET THE STATUTORY REQUIREMENTS OF A STIPULATION OF SETTLEMENT; THE DISSENTERS ARGUED THE EMAIL EXCHANGES EVINCED AN ENFORCEABLE AGREEMENT (THIRD DEPT).

​The Third Department, reversing Surrogate’s Court, determined: (1) the email exchanges between the parties’ attorneys did not constitute a settlement agreement; and (2) to be valid any stipulation of settlement must be placed on the record in open court, reduced to a court order and contained in a writing subscribed by the parties or counsel (not done here). The case concerns a dispute over the distribution of the estate of the deceased between the deceased’s daughter and wife. There was a two-justice dissent which argued a valid settlement agreement had been reached. The dissent made no mention of the statutory requirements for a stipulation of settlement:

Surrogate’s Court erred in finding that a binding agreement was formed, as the parties did not mutually assent to all material terms. To the extent that the daughter’s counsel asserts that the initial email set out an overview of the material terms to which the parties agreed during the ADR session, we note that such verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement (see CPLR 2104 …). The initial email and the subsequent correspondence also fail to establish that the parties reached an agreement. * * *

We also remind the parties that, to be enforceable, stipulations of settlement require more than just an agreement among the parties. Once the parties to an active litigation reach an agreement, they must (1) place the material terms of such agreement on the record in open court, (2) reduce them to a court order which is then signed and entered or (3) contain them in a writing subscribed by the parties or their counsel (see CPLR 2104 …). Matter of Eckert, 2023 NY Slip Op 03270, Third Dept 6-15-23

Practice Point: Here there was a question whether email exchanges between the parties’ attorneys after a settlement conference formed an enforceable settlement agreement. The majority said “no” and the two dissenters said “yes.” Although the issue does not seem to be determinative in this decision, the majority noted that the statutory requirements for a stipulation of settlement were not met (open court, reduced to an order, writing signed by the parties or counsel).

 

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A SUMMARY JUDGMENT MOTION BROUGHT BEFORE ISSUE IS JOINED IS PREMATURE AND SHOULD NOT BE CONSIDERED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, noted that a summary judgment motion brought before issue is joined should not be considered:

Initially, we discern no error with Supreme Court treating plaintiff’s order to show cause, filed two days after commencement of the action, essentially as a motion for summary judgment seeking ultimate relief … . However, “[a] motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” … . “Particularly in an action for declaratory judgment, all of the material facts and circumstances should be fully developed before the respective rights of the parties may be adjudicated” … . Accordingly, rather than reaching the merits, Supreme Court should have determined that plaintiff was barred from seeking summary judgment at the time and denied the motion as premature … . That defendant answered and issue was joined prior to the return date of the order to show cause does not change this determination … . Sackett v State Farm Mut. Auto. Ins. Co., 2023 NY Slip Op 03274, Third Dept 6-15-23

Practice Point: A summary judgment motion is premature if brought before issue is joined and should not be considered by the court.

 

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IN THIS DOG-BITE CASE, DEFENDANT DEMONSTRATED SHE WAS NOT AWARE OF HER DOG’S VICIOUS PROPENSITIES; PLAINTIFF’S ALLEGATIONS IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DID NOT RAISE A QUESTION OF FACT ON THAT ISSUE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant dog-owner’s motion for summary judgment in this dog-bite case should have been granted. Defendant made a prima facie showing she was not aware of the dog’s vicious propensities. Plaintiff did not raise a question of fact on that issue:

Even when viewing the evidence in the light most favorable to plaintiff, as we must, we find that plaintiff failed to raise an issue so as to defeat the motion. As to the statement that the dogs were play fighting, the child admitted that she was unfamiliar with dogs and that she assumed because they were growling that they were fighting or at least unhappy with “what’s [going on] around them.” However, “[n]o court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities” … . Growling and barking during play activities among dogs is consistent with normal canine behavior … . Even if the growling could be considered some indication of vicious propensities, the child never identified the dog that bit her as being the dog that she heard growling. As to the statement that the dog dislikes males, the child testified that defendant’s son told me “something about [the dogs] not liking guys, but as a joke.” This is not proof of an aggressive behavior and, in any event, does not relate to the child because she is a female … . The mere fact that defendant kenneled the dog, and kept the dog in her bedroom when she was absent from her residence, does not support an inference that defendant was aware the dog might pose a danger, since there was no evidence that this was done due to a concern that the dog would harm someone … ; instead defendant’s son stated that the dogs were kenneled because the puppies might escape. Additionally, it is undisputed that the dog was not confined, gated or tethered while the child was at the residence and in fact the child encouraged the dog to jump up on the bed next to her so she could pet it … . J.S. v Mott, 2023 NY Slip Op 03276, Third Dept 6-15-23

Practice Point: This is a fact-based dog-bite case. Plaintiff’s allegations in opposition to defendant dog-owner’s summary judgment motion did not raise a question of fact about whether defendant was aware of her dog’s vicious propensities.

 

THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT).

The Third Department determined the inclusory concurrent counts must dismissed and the related sentences vacated:

Modification of the judgment is required due to defendant’s conviction of inclusory concurrent charges. ” ‘With respect to inclusory concurrent counts, a verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted’ ” (… CPL 300.40 [3] [b]). We agree with defendant, and the People correctly concede, that criminal sexual act in the first degree (two counts) must be reversed and dismissed as inclusory concurrent counts of predatory sexual assault against a child … . Defendant’s contention that incest in the third degree must be dismissed as an inclusory concurrent count of incest in the first degree is moot, as this Court has now dismissed the latter count. People v Sharlow, 2023 NY Slip Op 03260, Third Dept 6-15-23

Practice Point: Where a defendant is convicted of inclusory concurrent counts, those counts must be dismissed and the related sentences vacated.

 

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