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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the court should have held a hearing on father’s petition for a modification of custody:

… [T]he father alleged … that, since the prior order, he has relocated to a small, quiet apartment but now has a lengthy commute each way to exercise his parenting time, the child wishes to spend more time with him and the prior order provides him with a limited amount of a parenting time when considering the progress he has made to care for the child. Family Court sua sponte dismissed the father’s petition without prejudice, finding that the father failed to allege a sufficient change in circumstances. The father appeals.

Family Court erred in dismissing the petition without holding a hearing. “A parent seeking to modify a prior order of custody and visitation is required to demonstrate that a change in circumstances has occurred since entry thereof that then warrants the court engaging in an analysis as to the best interests of the child” … . “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing” … , “[g]enerally, where a facially sufficient petition has been filed, modification of a Family Ct Act article 6 custody order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard” … . Matter of Neil VV. v Joanne WW., 2022 NY Slip Op 03557, Third Dept 6-2-22

Practice Point: Where, as here, a facially sufficient petition for a modification of custody had been filed, petitioner is entitled to a hearing.

 

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IF GERMANY WAS DECEDENT’S DOMICILE, NEW YORK MAY RECOGNIZE THE GERMAN HOLOGRAPHIC WILL; MATTER SENT BACK TO SURROGATE’S COURT TO DEVELOP A RECORD ON THE DOMICILE ISSUE (THIRD DEPT). ​

The Third Department, reversing Surrogate’s Court, determined a hearing should be held to determine decedent’s domicile. Decedent was a world traveler who owned property in Germany and executed a holographic will in Germany. If Germany was his domicile, New York may recognize the holographic will:

… [D]ecedent was initially domiciled in New Jersey before he left the United States in 2014 … . Since decedent’s domicile had been established, “unlike mere physical residency, [domicile] is presumed to continue until a new one is acquired and is controlled by the subjective intent of the party claiming domicile” … . This determination generally involves questions of both fact and law “and is based upon ‘conduct manifesting an intent to establish a permanent home with permanent associations in a given location'” … . Where there are particularly unique facts, like here with decedent being a perpetual world traveler, domicile is often “a question of fact rather than law, and it frequently depends upon a variety of circumstances, which differ as widely as the peculiarities of individuals” … .

Domicile is particularly important where, like here, there is a petition to probate a holographic will. Although there are limited circumstances where a holographic will may be validly executed in New York (see EPTL 3-2.2), New York courts may nevertheless accept holographic wills that are “executed and attested in accordance with the local law of . . . [t]he jurisdiction in which the testator was domiciled, either at the time of execution or of death” (EPTL 3-5.1 [c] [3] …). In doing so, New York courts may take judicial notice of the laws of other countries and, as a matter of comity, may accept the findings of foreign courts (see CPLR 4511 [b] …).

… [T]he record was incomplete and must be further developed as it relates to the proceedings in Germany. Specifically, we are concerned over the omission of the certificate of inheritance — which petitioner argues established decedent’s domicile in Germany — as such document may, if afforded comity, be dispositive … . Matter of Noichl, 2022 NY Slip Op 03558, Third Dept 6-2-22

Practice Point: Determination of a person’s domicile is a question of law and fact, depending in part on the person’s intent. Here, if Germany was decedent’s domicile at the time the holographic German will was executed, or at the time of death, New York may recognize the German holographic will. Matter sent back to develop a factual record on the domicile issue.

 

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CLAIMANT’S ATTORNEY WAS NOT AWARE OF THE THIRD DEPARTMENT’S UNIQUE REQUIREMENT OF FULL EXPERT-WITNESS DISCLOSURE FOR A TREATING PHYSICIAN; THAT WAS AN ADEQUATE EXCUSE FOR AN UNTIMELY DISCLOSURE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined claimant’s treating physician (Hopson) in this personal injury case should have been allowed to testify as an expert, despite the failure to comply with full expert disclosure pursuant to CPLR 3101. The Third Department is the only department which requires such full expert disclosure by a treating physician and claimant’s attorney had not practiced in the Third Department:

There is no dispute that claimant failed to comply with the expert disclosure requirements of CPLR 3101 (d) (1) (i) in identifying Hopson as a witness. Nevertheless, we disagree with the Court of Claims’ finding that claimant’s excuse was unreasonable. The situation here mirrors that in Schmitt v Oneonta City Sch. Dist. (151 AD3d 1254), where we accepted the explanation of the plaintiffs’ attorney that he was “unaware of this Court’s interpretation of CPLR 3101 (d) (1) (i) and the corresponding need to file an expert disclosure for a treating physician, and the record [was] otherwise devoid of any indication that counsel’s failure to file such disclosure was willful” … . The same holds true here, as claimant’s attorney revealed that she practices law in a different judicial department and candidly conceded that she was unaware of this Court’s interpretation that the statute requires expert disclosure for treating physicians. There is nothing in the record calling into question the veracity of counsel’s representations and no basis to conclude that the noncompliance with CPLR 3101 (d) (1) (i) was willful. As such, the court erred in precluding Hopson’s testimony as an expert witness…. . Freeman v State of New York, 2022 NY Slip Op 03559, Third Dept 6-2-22

Practice Point: Only the Third Department requires full expert-witness disclosure for a treating physician.

 

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PLAINTIFF’S EMPLOYER’S MOTIONS FOR SUMMARY JUDGMENT ON DEFENDANT’S CONTRACTUAL INDEMNITY, COMMON-LAW INDEMNITY AND CONTRIBUTION CAUSES OF ACTION SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant property-owner’s indemnity claims against plaintiff’s employer (Sodexo) in this slip and fall case should have been dismissed. Defendant, as the property-owner, was responsible for the structural maintenance of the stairwell where plaintiff fell. The fall was not caused by debris on the stairwell, which was Sodexo’s only responsibility under its contract with defendant:

While defendant argued … that Sodexo’s responsibility to “provide basic housekeeping to all areas of operation during the course of the operating day” included the subject stairs, it is clear from the incident report and post incident/accident root cause analysis form that the staircase was clear of obstructions, objects, substances and debris of any sort. Accordingly, defendant failed to raise a triable issue of fact regarding whether [the] accident was caused by Sodexo’s sole negligence, so Sodexo was entitled to summary judgment dismissing defendant’s cause of action for contractual indemnity. * * *

Defendant has not alleged any scenario under which it could be held vicariously or statutorily liable for any negligence of Sodexo. Accordingly, Sodexo was entitled to summary judgment dismissing defendant’s cause of action for common-law indemnification … .

… Inasmuch as defendant failed to raise an issue of fact as to Sodexo’s negligence, defendant is not entitled to contribution from Sodexo, and Sodexo’s motion for summary judgment dismissing defendant’s contribution cause of action should have been granted. O’Toole v Marist Coll., 2022 NY Slip Op 03560, Third Dept 6-2-22

Practice Point: Defendant property owner’s actions against plaintiff’s employer for contractual and common law indemnity and contribution should have been dismissed because plaintiff’s slip and fall was not the result of any act or omission on plaintiff’s employer’s part. The criteria for indemnity and contribution causes of action are explained.

 

DESPITE THE FACT THAT PLAINTIFF COULD NOT SAY WHICH OF TWO CRACKS IN THE PAVEMENT CAUSED HIS FALL, THE CAUSE OF THE FALL WAS SUFFICIENTLY IDENTIFIED TO WITHSTAND SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted on the ground plaintiff could not identify the cause of his fall. Plaintiff alleged that one of two cracks in the pavement caused the fall:

Plaintiff testified that, on the day of the incident, the weather was clear and there was no snow or debris on the surface of the parking lot. He had parked his car in the parking lot and was approaching the front door of the store when his foot suddenly “hit something along the pavement and . . . stopped,” causing him to fall to the ground. An individual who was walking behind plaintiff came to his aid, helping plaintiff up off the ground and assisting him back to his vehicle. At the time of his fall, plaintiff did not look at the ground to determine the cause. However, he recalled that, after being helped back to his vehicle, he looked back and noticed a cracked area of the pavement where he had fallen. Plaintiff was shown photographs of the parking lot and identified the location of his fall by circling in one of the photographs an uneven area of the pavement with two cracks in close proximity to one another. Upon further questioning, plaintiff was unable to identify which of the two cracks caused the fall, but repeatedly testified that he knew it was one of those two cracks based upon where he landed when he fell.

… Although plaintiff’s statements were not without some inconsistencies, he was steadfast in his testimony that he tripped on one of the two identified cracks in the pavement of the parking lot. Despite Supreme Court’s suggestion to the contrary, plaintiff was not required to state for certain which particular crack caused him to fall in order to withstand summary judgment … . Bovee v Posniewski Enters., Inc., 2022 NY Slip Op 03561, Third Dept 6-2-22

Practice Point: Plaintiff was able to testify that one of two cracks in the pavement was the cause of his fall. The cause was sufficiently identified to withstand summary judgment.​

 

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IN THIS Y-INTERSECTION TRAFFIC ACCIDENT CASE, (1) THE TOWN DEMONSTRATED IT DID NOT HAVE THE REQUIRED WRITTEN NOTICE THAT OVERGROWN FOLIAGE BLOCKED LINES OF SIGHT; (2) QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE CAUSES OF ACTION ALLEGING INADQUATE SIGNAGE AND NEGLIGENT ROADWAY DESIGN (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this Y-intersection traffic accident case, determined:(1) the cause of action against the town alleging overgrown foliage blocked drivers’ line of sight should have been dismissed because the town demonstrated it did not have written notice of the condition; (2) the written-notice requirement does not apply to the causes of action alleging inadequate signage and negligent design, which properly survived summary judgment:

By its submission of the affidavits of its Town Clerk and Superintendent of Highways who both averred that, after review of the pertinent records, no written notice was received pertaining to any alleged defective or dangerous condition caused by or from overgrown trees … , the Town successfully shifted the burden to plaintiffs to establish an issue of fact as to prior written notice, which plaintiffs failed to do … .

As to plaintiffs’ claims pertaining to inadequate signage and negligent design of the intersection, we agree that prior written notice requirements do not apply to these alleged defects … . * * *

… [T]he record demonstrates that, at the very least, at some point in the modern era the roads were paved and signage was installed. The Town has provided no proof as to when or how often these activities have been undertaken or that they were completed in compliance with the standards in place at the time … .

We further agree that Supreme Court properly rejected the Town’s contention that plaintiffs’ allegations of negligence by the Town were negated by [the drivers’] familiarity with the intersection. …  … [I]t cannot be said that this Y intersection was reasonably safe as a matter of law, nor did the Town conclusively demonstrate that placing the stop sign in a different location would have resulted in the same conduct by [the drivers]. … [T]riable issues of fact exist as to whether the signage at the intersection was a proximate cause of the accident … . Read v Bell, 2022 NY Slip Op 03563, Third Dept 6-2-22

Practice Point: In a traffic accident case, a municipality will not be liable for overgrown foliage which blocks lines of sight if the town has not been provided with written notice of the condition. The written-notice requirement does not apply to causes of action alleging the accident was caused by inadequate signage or negligent roadway design.

 

THE WORKERS’ COMPENSATION BOARD MISINTERPRETED SPECIAL CONSIDERATION 4 TO LIMIT SCHEDULE LOSS OF USE (SLU) OF PLAINTIFF’S LEG TO 10% (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined “special consideration 4” of the Workers’ Compensation Guidelines for Determining Impairment was not properly interpreted, resulting in a schedule loss of use (SLU) for claimant’s leg that is inappropriately low (10%):

Claimant argues that the Board’s interpretation of special consideration 4 and the instructions regarding its application is irrational and runs afoul of the purpose of Workers’ Compensation Law § 15 (3). We agree. “SLU awards are not given for particular injuries, but they are made to compensate an injured worker for his or her loss of earning power or capacity that is presumed to result, as a matter of law, from the residual permanent physical and functional impairments to statutorily-enumerated body members”  … . * * *

Relying on the plain language of the 2018 guidelines, the Board reads special consideration 4 as making no provision for additional values due to flexion or extension deficits, reasoning that the enumerated SLU range already takes into account range of motion deficits…. . …

Although special consideration 4 may arguably be said to rationally limit an SLU value when it is based upon only a finding of chondromalacia patella, the Board’s interpretation of the foregoing instructions results in the obvious inequity identified by claimant and cannot be upheld. To accept the Board’s interpretation would be to sanction an application of the 2018 guidelines that results in claimants with only meniscus tears routinely receiving SLU awards far greater than 7½ to 10% based upon their range of motion deficits … . Matter of Blue v New York State Off. of Children & Family Servs., 2022 NY Slip Op 03565, Third Dept 6-2-22

Practice Point: In determining the schedule loss of use (SLU) for claimant’s leg, the Workers’ Compensation Board misinterpreted “special consideration 4” resulting in an inappropriately low SLE percentage.

 

THE EDUCATION LAW PERMITS, BUT DOES NOT REQUIRE, SCHOOL DISTRICTS TO PROVIDE TRANSPORTATION TO STUDENTS ATTENDING NONPUBLIC SCHOOLS WHEN THE PUBLIC SCHOOLS ARE NOT IN SESSION (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Ceresia, determined that Education Law 3635 should not be interpreted to require school districts to provide transportation to nonpublic schools when public schools are not in session:

As is relevant here, Education Law § 3635 (1) (a) states that “[s]ufficient transportation facilities . . . shall be provided by the school district for all the children residing within the school district to and from the school they legally attend, who are in need of such transportation because of the remoteness of the school to the child or for the promotion of the best interest of such children.” * * *

We reject Supreme Court’s broad view of the statute not only because it runs afoul of the legislative history, but also because it would lead to unreasonable results … . To be sure, the Legislature could not have intended to require school districts to transport nonpublic school students in the summer, on weekends, on state or federal holidays, or on days when public schools are closed for weather-related or other emergency reasons, none of which would be foreclosed by Supreme Court’s interpretation. … [W]e hold that Education Law § 3635 (1) (a) permits, but does not require, school districts outside New York City to transport nonpublic school students to and from school on days when the public schools are closed. Matter of United Jewish Community of Blooming Grove, Inc. v Washingtonville Cent. Sch. Dist., 2022 NY Slip Op 03566, Third Dept 6-2-22

Practice Point: Here the legislative history of Education Law 3635 was consulted to determine that school districts are permitted, but not required, to provide transportation to nonpublic-school students went the public schools are not in session.

 

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THIS JUVENILE DELINQUENCY PROCEEDING STEMMED FROM ALLEGATIONS RESPONDENT COMMITTED VIOLENT ACTS AGAINST THE MOTHER OF HIS CHILD; THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED “IN FURTHERANCE OF JUSTICE;” CRITERIA EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined this juvenile delinquency proceeding should not have been dismissed “in furtherance of justice.” The respondent was charged with acts of violence against the mother of his child:

Dismissal in the furtherance of justice is an extraordinary remedy that must be employed “sparingly, that is, only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution . . . would be an injustice” … . In determining such a motion, the statutory factors which must be considered, individually and collectively, are as follows: “(a) the seriousness and circumstances of the crime; (b) the extent of harm caused by the crime; (c) any exceptionally serious misconduct of law enforcement personnel in the investigation and arrest of the respondent or in the presentment of the petition; (d) the history, character and condition of the respondent; (e) the needs and best interest of the respondent; (f) the need for protection of the community; and (g) any other relevant fact indicating that a finding would serve no useful purpose” … . “At least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal” …

According to the sworn statement of the victim — the mother of respondent’s child — respondent became verbally abusive toward her when she got pregnant, and physically abusive after their child was born, including pinching, punching and slapping her, once when she was holding the child. On the date in question, respondent threw a full, eight-ounce baby bottle at the victim, which hit her in the face, when she asked him to feed the child, who was crying. The victim stated that, although she was bleeding heavily, respondent and his father discouraged her from seeking medical attention. When she eventually did go to the hospital the next day, a cut on her face was glued shut by a doctor and she was told to return for X rays after the swelling had abated. The victim indicated that she felt unsafe living with the child in the home of respondent and his father. Matter of James JJ., 2022 NY Slip Op 03555, Third Dept 6-2-22

Practice Point: The allegations of violence in this juvenile delinquency proceeding were deemed too serious to warrant dismissal of the juvenile delinquency proceeding “in furtherance of justice.” This remedy should be used sparingly and at least one of the statutory factors for dismissal in furtherance of justice must be readily identifiable.

 

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DEFENDANT’S PLEA COLLOQUY NEGATED AN ESSENTIAL ELEMENT (JURAT) OF HIS PERJURY CONVICTIONS; PLEA VACATED (THIRD DEPT).

The Third Department, vacating the plea to perjury, determined defendant’s plea colloquy negated an essential element of the crime:

… [W]e conclude that defendant is entitled to challenge the plea because he made statements during the colloquy that negated an essential element of the crime … . “A person is guilty of perjury in the third degree when he [or she] swears falsely” … . “A person ‘swears falsely’ when he [or she] intentionally makes a false statement which he [or she] does not believe to be true . . . under oath in a subscribed written instrument” … . An “‘[o]ath’ includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated” … . The document in question was captioned as an “Affidavit of Financial Information.” The preamble begins with the representation that defendant, “being duly sworn, deposes and says the following under penalty of perjury.” The following statement is included above defendant’s signature: “I have carefully read the foregoing statements contained in this Affidavit of Financial Information. They are true and correct.” The document includes defendant’s signature and a jurat completed by defendant’s attorney in July 2017 … . The same is true for the amended affidavit signed in August 2017.

During the plea allocution, defendant explained that he received the affidavit from his attorney by e-mail “and then [he] filled it out on e-mail as well and sent it right back to him.” No statement was made that the attorney actually administered an oath to defendant before he signed the affidavits. Given defendant’s limited explanation of the affidavit sequence, County Court was obligated to further inquire as to the oath element before accepting the plea … . People v Marone, 2022 NY Slip Op 03543, Third Dept 6-2-22

Practice Point: Here the defendant’s plea colloquy negated an essential element of the crime. The judge should have inquired further before accepting the plea. Plea vacated.

 

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