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AFTER A JUROR CAME FORWARD DURING DELIBERATIONS TO SAY SHE THOUGHT THE DEFENDANT HAD FOLLOWED HER IN HIS CAR DURING THE TRIAL AND OTHER JURORS EXPRESSED SAFETY CONCERNS WITH RESPECT TO TRIAL SPECTATORS, THE JUDGE INTERVIEWED EACH JUROR AND PROPERLY DENIED DEFENDANT’S MOTION FOR A MISTRIAL BASED ON A GROSSLY-UNQUALIFIED-JUROR ARGUMENT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly denied defendant’s CPL 330.30 motion to set aside the verdict on the ground a juror was grossly unqualified. A juror (No. 6) had come forward during deliberations to say she thought the defendant had followed her in his car during the trial and had concerns for her safety. According to Juror No. 6, other jurors expressed safety concerns with respect to spectators at the trial. The judge interviewed each juror and concluded a mistrial should not be granted:

Upon review of the private colloquy between County Court and juror No. 6, we disagree with the dissent’s view that County Court failed to engage in a probing and tactful inquiry taking into due account the juror’s responses. “The [t]rial [j]udge generally is accorded latitude in making the findings necessary to determine whether a juror is grossly unqualified under CPL 270.35, because that [j]udge is in the best position to assess partiality in an allegedly biased juror”  … .The trial court is tasked with “evaluat[ing] the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case” … . County Court, “[i]n concluding that a juror is grossly unqualified, . . . may not speculate as to possible partiality of the juror based on [his or] her equivocal responses. Instead, it must be convinced that the juror’s knowledge will prevent [him or] her from rendering an impartial verdict” … . This Court likewise should not speculate. People v Fisher, 2023 NY Slip Op 00248, Third Dept 1-19-23

Practice Point: After a juror came forward during deliberations to say he had concerns for her safety because she thought defendant had followed her in his car during the trial, the trial judge interviewed her and the other jurors. The majority concluded defendant’s motion for a mistrial was properly denied. There was a two-justice dissent.

 

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THE ASSAULT AND BATTERY OF CLAIMANT-INMATE BY CORRECTIONS OFFICERS OCCURRED WITHIN THE SCOPE OF THE OFFICERS’ EMPLOYMENT AND WAS REASONABLY FORESEEABLE; THEREFORE THE STATE, AS THE OFFICERS’ EMPLOYER, COULD BE LIABLE FOR THE ASSAULT AND BATTERY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the alleged assault and battery by corrections officers occurred within the scope of the officers’ employment at the correctional facility and was reasonably foreseeable. Therefore the state could be liable under the doctrine of respondeat superior. The Court of Claims had held the assault was conduct outside the scope of the officers’ employment and the state therefore was not liable:

… [W]hile it is our view that the correction officers’ use of force was excessive, the ensuing investigations of the incident effectively condoned the conduct of the correction officers and tacitly found them to be engaged in actions that were within the scope of employment … . To this end, it was claimant that was found guilty of misbehavior for assaulting prison staff, and prison officials determined that the use of force was “consistent with Departmental Rules[,] and [that] the injuries received, both by staff and the involved [incarcerated individual] are accounted for.” This evidence reflects that prison officials determined that the conduct of the correction officers was appropriate under the circumstances and fell within the scope of employment. Finally, in light of claimant’s … report accusing Poupore [one of the corrections officers involved] of inappropriate contact with claimant, which preceded the incident, and Poupore’s knowledge of same, it was clearly foreseeable that a tense encounter could result during further interactions between Poupore and claimant in the context of normal employment-related activities in the prison … . Altogether, we find that the foregoing establishes by a preponderance of the evidence that the assault occurred within the scope of the correction officers’ employment as a reasonably foreseeable consequence of an employment-related activity and that the verdict in this case must be reversed on the facts and the law. Galloway v State of New York, 2023 NY Slip Op 00137, Third Dept 1-12-23

Practice Point: The assault and battery of claimant-inmate was deemed to be within the scope of the corrections officers’ employment and foreseeable. Therefore the state, as the officers’ employer, could be liable under the doctrine of respondeat superior.

 

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NONPUBLIC RESIDENTIAL HEALTH CARE FACILITIES NEED PERMISSION TO WITHDRAW EQUITY OR TRANSFER ASSETS IN EXCESS OF 3% OF THE FACILITIES’ REVENUE; CORPORATE OWNERS NEED NOT INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION; FACILITIES OWNED BY PASS-THROUGH ENTITIES (I.E., LIMITED LIABILITY COMPANIES) MUST INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION (THIRD DEPT).

The Third Department, in two full-fledged opinions by Justice Lynch, determined that nonpublic residential health care facilities owned by pass-through entities (i.e., a limited liability company, S corporation, partnership or sole proprietorship) must include federal and state income taxes in the calculation of equity withdrawals. Public Health Law 2808 (5) prohibits the withdrawal of equity or transfer of assets in excess of 3% of the facility’s total revenue without prior written approval of the Commissioner of Health. If the residential health care facility is owned by a corporation, federal and state income taxes are not included in the 3% calculation:

Public Health Law § 2808 (5) (c) responds to the Legislature’s concern that a facility’s improvident withdrawal of substantial assets would compromise the facility’s operation and “occasion irreparable harm within an especially fragile and dependent resident population” … . Given this context, “[w]ithdrawals for facility purposes”  are necessarily those that concern a facility’s own financial obligations and expenses … . … . Petitioners do not dispute that, for a pass-through entity, income tax liability is borne by the owner, not the facility. Thus, given the regulatory scheme, income tax payments by such an entity would necessarily be equity withdrawals or asset transfers satisfying the obligation of the owner, not the facility … . In other words, even though such withdrawals are for tax payments, they are not “[w]ithdrawals for facility purposes” … . Matter of Brightonian Nursing Home, Inc. v Zucker, 2023 NY Slip Op 00008, Third Dept 1-5-23

Practice Point: Unlike nonpublic health care facilities owned by corporations, nonpublic health care facilities owned by pass-through entities (i.e., a limited liability company, S corporation, partnership or sole proprietorship) must include federal and state income taxes in their calculation of withdrawals from equity. Withdrawal of equity or transfer of assets in excess of 3% of revenue requires the permission of the Commissioner of Health pursuant to Public Health Law 2802 (5).

 

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​ THE MAJORITY HELD THE EVIDENCE DID NOT ESTABLISH DISORDERLY CONDUCT AS A FAMILY OFFENSE, FINDING THE CONDUCT WAS NOT “PUBLIC;” THE DISSENT ARGUED THE CONDUCT WAS “PUBLIC” IN THAT IT TOOK PLACE IN THE PRESENCE OF ADULTS AND CHILDREN OUTSIDE A DAYCARE CENTER (THIRD DEPT).

The Third Department, over a dissent, determined the evidence did not establish a family offense (disorderly conduct): The majority and the dissenter disagreed on whether the conduct was “public” in nature:

“[C]ritical to a charge of disorderly conduct is a finding that [the mother’s] disruptive statements and behavior were of a public rather than an individual dimension . . ., which requires proof of an intent to threaten public safety, peace or order” … . “[A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem” … .

From the dissent:

[The] disruptive behavior outside a daycare program in the direct presence of other adults and children took on a public dimension that was no doubt alarming to the grandmother, the child and the bystanders. Whether intentional or not, such conduct satisfies the reckless component for the charge. On this record, the charge of disorderly conduct within the petition was established by a preponderance of the evidence and should have been sustained (see Penal Law § 240.20 [1], [3] …). Matter of Linda UU. v Dana VV., 2023 NY Slip Op 00013, Third Dept 1-5-22

Practice Point: In order for conduct to amount to disorderly conduct it must have a “public” as opposed to an “individual” dimension. This case shows the distinction can be difficult to discern.

 

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DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT PLAINTIFF’S EXPOSURE TO ASBESTOS WHEN MAINTAINING DEFENDANT’S PRODUCTS DID NOT CONTRIBUTE TO PLAINTIFF’S ASBESTOS-INJURIES; AT THE SUMMARY JUDGMENT STAGE, IT IS NOT ENOUGH FOR DEFENDANT TO ARGUE PLAINTIFF COULD NOT PROVE CAUSATION (THIRD DEPT). ​

The Third Department determined there were questions of fact whether plaintiff (Howard) was exposed to asbestos in his maintenance of defendant’s pumps on Navy submarines: Defendant failed to demonstrate as a matter of law that its products did not contribute to plaintiff’s asbestos-injuries:

“In order to establish entitlement to judgment as a matter of law, defendant[] bore the initial burden of demonstrating that [its] respective products ‘could not have contributed to the causation’ of [Howard]’s asbestos-related injuries” … . Defendant could not prevail on its motion for summary judgment by “merely pointing to gaps in . . . plaintiff[s’] proof” … . In other words, “[defendant] could not simply argue that plaintiff[s] could not affirmatively prove causation, but rather it had to affirmatively prove, as a matter of law, that there was no causation” … .

… According to Howard [plaintiff], his duties aboard these various vessels required, among other things, that he directly supervise maintenance on defendant’s pumps, which included asbestos-containing gaskets, packing and insulation. Howard stated that he would work in the immediate vicinity of the pumps when the gaskets were removed and scraped from the pumps, and when packing and insulation on the pumps was removed and replaced. Howard v A.O. Smith Water Prods., 2023 NY Slip Op 00017, Third Dept 1-5-23

Practice Point: In a toxic tort case, in order to prevail on a summary judgment motion, defendant must demonstrate as a matter of law that defendant’s products did not cause plaintiff’s injuries. The defendant will not win a summary judgment motion in this context by arguing plaintiff could not prove causation.

 

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PETITIONER, A FORMER CORRECTION OFFICER SEEKING REINSTATEMENT, WAS ENTITLED TO THE RECORDS OF THE PSYCHOLOGICAL EXAMINATION WHICH FOUND HIM UNFIT; THE WAIVER OF THE RIGHT TO REVIEW THOSE DOCUMENTS, SIGNED BY PETITIONER, WAS A NULLITY (THIRD DEPT).

​The Third Department, in a full-fledged opinion by Justice Pritzker, reversing Supreme Court, determined petitioner, a former correction officer seeking reinstatement, was entitled to discovery of the records of the psychological examination which found him unfit to serve as a correction officer. The court held that the waiver of the right to review such documents (signed by the petitioner at the outset) was a nullity:

… [W]e do not agree that the limited review procedures established in Correction Law § 8 can lawfully be used to side-step and effectively eviscerate the robust protections set forth in 4 NYCRR 5.9 (e) (3), which directly apply to those seeking reinstatement under Civil Service Law § 71 … . Nevertheless, although both statutes have different purposes — Correction Law § 8 is designed to eliminate applicants “who exhibit psychological disorders that would indicate their unsuitability for the job” … , whereas Civil Service Law § 71 was enacted for the “protection of an employee separated from the service by reason of a disability resulting from occupational injury or disease” … — both purposes can be achieved, and the statutes harmonized by permitting the use of Correction Law § 8 testing while preserving the review procedure set forth in 4 NYCRR 5.9 relative to employees falling within Civil Service Law § 71 … . Notably, despite the use of Correction Law § 8 testing, this matter remains distinctly a Civil Service Law § 71 reinstatement case.

… [P]etitioner is minimally entitled to receive the clandestine psychological report that formed the very basis for the disqualification for reinstatement, as well as all other rights attendant to a hearing held pursuant to article 3 of the State Administrative Procedure Act. … [T]o the extent that petitioner signed a waiver purporting to extinguish these rights, the waiver is a nullity inasmuch as respondent’s policy requiring all applicants to sign the consent and release form is an unpromulgated rule under the definition of “[r]ule” within State Administrative Procedure Act § 102 (2) (a) (i), and therefore is without effect … . Matter of Williams v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07280, Third Dept 12-22-22

Practice Point: Petitioner, a former correction officer seeking reinstatement, was entitled to the records of the psychological exam which found him unfit. The waiver of the right to review the documents, signed by petitioner at the outset, was based upon an unpromulgated rule and therefore was of no effect.

 

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BOTH PLAINTIFF BUS DRIVER AND THE DRIVER OF THE CAR WHICH STRUCK PLAINTIFF’S BUS WERE DEEMED COUNTY EMPLOYEES IN A RELATED PROCEEDING; THEREFORE, PURSUANT TO THE COLLATERAL ESTOPPEL DOCTRINE, WORKERS’ COMPENSATION WAS PLAINTIFF’S EXCLUSIVE REMEDY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the doctrine of collateral estoppel required the dismissal of plaintiff bus-driver’s causes of action against the estate of driver of the car which struck plaintiff’s county bus, and against Jewish Family Services (JFS) for whom the decedent-driver was volunteering at the time of the accident. JFS and the county collaborated on a program to drive senior citizens to medical appointments. Plaintiff sued JFS under a respondeat superior theory. Pursuant to the Workers’ Compensation Law, workers’ compensation benefits were plaintiff’s exclusive remedy because both she and the driver of the car had been deemed county employees in a related action:

A review of the papers supporting [the county’s] cross motion [in the related proceeding] establishes, however, that [the county] focused upon the provisions of Workers’ Compensation Law § 29 (6). Plaintiff thereafter had a full and fair opportunity to respond to that issue, which was discussed at length in the 2019 order. Indeed, Supreme Court … expressly held that the provisions of that statute applied because “both [plaintiff] and Hyde were within the same employ and acting within the scope of employment at the time the alleged injuries occurred, therefore rendering them co-employees which results in workers’ compensation being the exclusive remedy.” Accordingly, under the circumstances of this case, the issue of whether plaintiff and Hyde were coemployees was “actually litigated, squarely addressed and specifically decided” against plaintiff … .

Plaintiff’s claim against JFS is premised upon the theory that JFS exercised sufficient control over Hyde to render it vicariously liable for her negligence. The issue of whether plaintiff and Hyde are coemployees has been resolved against plaintiff with preclusive effect, however, and plaintiff’s exclusive remedy for the negligence of Hyde is therefore workers’ compensation benefits. As noted above, as Workers’ Compensation Law § 29 (6) “deprive[s] the injured employee of a right to maintain an action against a negligent coemployee, [it also] bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided” … . Thus, as “plaintiff[] did not assert any allegation that [JFS] had committed an act constituting affirmative negligence,” the cross motion of JFS for summary judgment dismissing the complaint against it should have been granted … . Bryant v Gulnick, 2022 NY Slip Op 07284, Third Dept 12-22-22

Practice Point: In a related proceeding it was determined that both plaintiff bus driver and the driver of the car which struck plaintiff’s bus were county employees. Therefore, pursuant to the doctrine of collateral estoppel, Workers’ Compensation was plaintiff’s exclusive remedy.

 

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HYDE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, LOST CONTROL AND CROSSED INTO THE PATH OF AN ONCOMING COUNTY BUS; HYDE WAS FATALLY INJURED AND PLAINTIFF HAD NO MEMORY OF THE ACCIDENT; THE COUNTY’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT AGAINST THE BUS DRIVER SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing (modifying) Supreme Court in this traffic accident case, determined the complaint against Bryant, the driver of the county bus involved in the accident, should have been dismissed. The driver of the car in which plaintiff was a passenger, Hyde, lost control of the car and crossed into the path of the oncoming bus. Hyde was fatally injured and plaintiff had no memory of the accident:

Bryant stated in her affidavit and deposition testimony that a mixture of snow and ice was falling in the leadup to the accident and that, although the road was coated in snow, she was still able to see the center line and fog lines. Bryant added that she was travelling two to five miles below the speed limit and was comfortable driving the bus in the weather conditions. As for the accident itself, Bryant stated that Hyde’s vehicle entered her lane about 1½ car lengths in front of the bus and that she had a second to react before striking it, as well as that she had “nowhere to go” to evade Hyde’s vehicle and that she lightly applied her brakes in an effort to slow down without losing control of the bus. Plaintiff had no recollection of the accident, and nothing else in the record, including the police accident report, contradicted Bryant’s version of events. Bryant accordingly established that she reacted reasonably when Hyde’s vehicle entered her lane of traffic, and plaintiff’s speculation that Bryant might have been able to avoid the collision had she been driving even further below the speed limit or taken other evasive action despite having “at most, a few seconds to react,” did not raise a question of fact … . Northacker v County of Ulster, 2022 NY Slip Op 07285, Third dept 12-22-22

Practice Point: The only evidence of the accident was that the driver of the car in which plaintiff was a passenger crossed into the path of the oncoming county bus and the bus driver had only a second to react. The county’s motion for summary judgment dismissing the complaint against the bus driver should have been granted.

 

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THERE IS A QUESTION OF FACT WHETHER A PRIOR OWNER OF DEFENDANT’S PROPERTY WAS AWARE OF PLAINTIFF’S INSTALLATION OF A SEPTIC SYSTEM ON DEFENDANT’S PROPERTY GIVING RISE TO A PRESCRIPTIVE EASEMENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff was entitled to a prescriptive easement with respect to a septic system which encroached on defendant’s property:

Plaintiff represents in her complaint that the septic system was installed “[a]t least as early as the 1920s.” The septic system was ostensibly concealed until 1997, when plaintiff replaced part of the tank. Moreover, a June 2000 letter from defendants’ father, the prior owner of the property, to his attorney indicates that he was aware of a septic tank that had been installed too close to the well on plaintiff’s land … . Although the record is sparse on information concerning plaintiff’s septic tank, the first indication that defendants sought any information from plaintiff concerning permission for the installation of the septic tank came in September 2018. In this respect, there is evidence suggesting a triable issue of fact as to whether plaintiff can establish that the septic system was installed with defendants’ predecessors’ knowledge and hostile to their interests. Accordingly, we find that defendants are not entitled to judgment as a matter of law as to whether plaintiff can establish her cause of action for a prescriptive easement in relation to the presence of the septic tank … which will ultimately implicate whether or not the tank constitutes a trespass … . Sasscer v Vesey, 2022 NY Slip Op 07286, Third Dept 12-22-22

Practice Point: Here there was a question of fact whether the prior owner of defendant’s property was aware plaintiff’s installation of a septic system encroached on defendant’s land, giving rise to a prescriptive easement.

 

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THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS VISITATION PROCEEDING REQUIRED REMITTAL FOR A NEW HEARING (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the judge’s failure to make findings of fact in the visitation proceedings required remittal:

Although the court recited that its determination was based upon the proof adduced at the fact-finding and Lincoln hearings, it did not make factual findings. Furthermore, the record is also not sufficiently developed in order for us to make an independent determination. In this regard, at the fact-finding hearing, the father withdrew his request for in-person visitation with the child and, on appeal, the father requests monthly telephone contact with the child. The mother testified that she opposed additional visitation than what was provided for in the 2013 order because the child showed signs of fear and apprehension, did not have a relationship with the father and was not engaged in writing letters to the father. The mother also testified that the child has a fear associated with prison and violence.

Other than the mother’s conclusory testimony, there was scant evidence, if any, demonstrating that the child having telephone contact with the father would be detrimental to the child’s welfare … . Moreover, even crediting the mother’s testimony about the child’s fear, it is unclear whether such fear relates to in-person visitation with the father at a prison or to telephone calls, as the father now requests. Because the record evidence is not sufficiently developed to determine whether the father should be awarded monthly telephone contact with the child, the matter must be remitted for a new hearing … . Matter of Anthony T. v Melissa U., 2022 NY Slip Op 07287, Third Dept 12-22-22

Practice Point: In this “expansion of visitation” proceeding, the judge did not make findings of fact and the record was not sufficient for the appellate court to rule, the case was remitted to Family Court for a new hearing.

 

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