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THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING A USE VARIANCE; THE INTITIAL PETITION FAILED TO NAME A NECESSARY PARTY WHO WAS KNOWN TO THE PETITIONERS AND WAS DISMISSED ON THAT GROUND; THE AMENDED PEITITION, WHICH NAMED THE NECESSARY PARTY, WAS DISMISSED AS TIME-BARRED; BECAUSE THE PETITIONERS HAD NO DOUBT ABOUT WHO THE NECESSARY PARTY WAS AND HAD NAMED HER IN A PRIOR PETITION, THE RELATION-BACK DOCTRINE COULD NOT BE INVOKED (THIRD DEPT).

The Third Department, over an extensive dissent, determined the relation-back doctrine did not save the petition challenging a use variance. The initial petition was dismissed for failure to name a necessary party, Rosa Kuehn. The subsequent amended petition, which included the necessary party, was dismissed as time-barred:

Supreme Court correctly determined that petitioners are not entitled to the benefit of the relation back doctrine. That doctrine “permits a petitioner to amend a petition to add a respondent even though the statute of limitations has expired at the time of amendment so long as the petitioner can demonstrate three things: (1) that the claims arose out of the same occurrence, (2) that the later-added respondent is united in interest with a previously named respondent, and (3) that the later-added respondent knew or should have known that, but for a mistake by petitioners as to the later-added respondent’s identity, the proceeding would have also been brought against him or her” … .

… [P]etitioners simply cannot meet the third and final condition and therefore cannot avail themselves of the doctrine. Indeed, Rosa Kuehn was appropriately named as a respondent and identified as the landowner of the subject property in petitioners’ successful challenge to the use variance issued in 2013 … ; “thus, this simply is not an instance where the identity of a respondent . . . was in doubt or there was some question regarding that party’s status” … . Matter of Nemeth v K-Tooling, 2022 NY Slip Op 03034, Third Department 5-4-22

Practice Point: Here a necessary party was not named in the petition and the petition was dismissed for that reason. The amended petition, which named the necessary party, was time-barred. The relation-back doctrine could not be invoked to save the amended petition because the identity of the necessary party was known to the petitioners who had named her in a related petition in 2013.

 

STAFFING COMPANY WHICH SCREENED JOB APPLICANTS FOR ITS CLIENTS WAS NOT AN EMPLOYER LIABLE FOR UNEMPLOYMENT INSURANCE CONTRIBUTIONS (THIRD DEPT). ​

The Third Department, reversing the Unemployment Insurance Appeal Board, determined Strikeforce Staffing was not an employer of the persons for whom it found employment with its clients. Therefore, Strikeforce was not liable for additional unemployment insurance contributions on remuneration paid to the claimant and others similarly situated:

Strikeforce recruited job seekers for its clients, businesses in need of workers, by placing advertisements on various websites. For example, claimant completed an application on Indeed.com for a line production position at a bakery. Strikeforce would first screen a job seeker’s application to see if he or she potentially met a client’s needs and, if so, send the individual for an interview with the client. The client would make a hiring decision and, according to the testimony of the owner and operator of Strikeforce, Strikeforce clients did not hire about 30% to 40% of the applicants referred to them. If hired, the client, not Strikeforce, would provide the worker with his or her rate of pay, which the worker was free to negotiate with the client, and the worker’s schedule. * * *

As Strikeforce does not exercise any control over the manner in which the workers hired by its clients perform their services, the means used to supply those services or the results produced, we cannot find that there is substantial evidence to support the Board’s determination that Strikeforce exercised sufficient direction, supervision and control over claimant, and those similarly situated, to demonstrate an employment relationship … . Matter of Cruz (Strikeforce Staffing LLC–Commissioner of Labor), 2022 NY Slip Op 02849, Third Dept 4-28-22

Practice Point: A staffing company which screens job applicants for its clients but which exercises no supervisory control over the applicants who are hired is not liable for unemployment insurance contributions.

 

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PLAINTIFFS HAD STANDING TO CHALLENGE THE TRUST SET UP BY DECEDENT; PLAINITIFFS DID NOT STATE A CAUSE OF ACTION FOR FRAUD BECAUSE IT WAS ALLEGED THE DECEDENT (A THIRD PARTY), NOT THE PLAINTIFFS, RELIED ON THE ALLEGEDLY FALSE STATEMENT; THE COMPLAINT STATED A CAUSE OF ACTION ALLEGING DEFENDANTS EXERCISED UNDUE INFLUENCE OVER THE DECEDENT WHICH AFFECTED THE DECEDENT’S ESTATE-RELATED DECISIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) the complaint did not state a cause of action for fraud because it was alleged a third-party (the decedent), not plaintiffs, relied upon the alleged false statement; (2) the complaint stated a cause of action for “undue influence” on the decedent by the defendants; and (3), the plaintiffs had standing to challenge the validity of the trust set up by the decedent. It was alleged that the decedent made decisions about the disposition of his assets based upon the false assertion that his daughter-in-law killed his son:

Here, as the grandchildren were given specific bequests in decedent’s … last will and testament, and the instrument creating the trust … reserved to decedent a limited power of appointment to name his grandchildren as possible beneficiaries of trust assets upon his death, the grandchildren are interested persons within the meaning of the SCPA, so plaintiffs have capacity to challenge the validity of the trust … . …

… [P]laintiffs cannot state a cause of action for fraud because the Court of Appeals has expressly declined “to extend the reliance element of fraud to include a claim based on the reliance of a third party” … . … As to plaintiffs’ cause of action asserting undue influence, plaintiffs’ broadly-stated theory is that, upon the death of the deceased son, the previously absent defendants drove a wedge between the daughter-in-law and decedent, took control of decedent’s caretaking as he aged and grew infirm and then moved him into defendants’ home where decedent created the trust and conveyed into it his assets to benefit defendants and the son upon his death. … [A]ffording the plaintiffs the benefit of every favorable inference … , we find that such allegations are enough to assert a cause of action for undue influence … . Constantine v Lutz, 2022 NY Slip Op 02842, Third Dept 4-28-22

Practice Point: To state a cause of action for fraud, it must be alleged the plaintiff(s), not a third party (the decedent in this case), relied on the alleged false statement. Here plaintiffs alleged the decedent made estate-related decisions based upon the false statement that his daughter-in-law killed his son. Because of the absence of the “reliance” element of fraud, that cause of action was properly dismissed.

 

THE MODIFICATION OF THE GUARDIANSHIP ORDER MUST BE IN THE BESTS INTEREST OF THE DEVELOPMENTALLY DISABLED PERSON; HERE THE APPOINTMENT OF STEPFATHER AS LIMITED COGUARDIAN CONSTITUTED A CHANGE THAT WAS NOT IN THE DISABLED PERSON’S BEST INTERESTS BECAUSE CONSISTENCY IN ROUTINE AND REGIMEN WAS PARAMOUNT (THIRD DEPT).

The Third Department, modifying Surrogate’s Court, determined the appointment of the stepfather as limited cogurdian of Jonathan JJ, a developmentally disable adult, was not in Jonathan’s best interests. Jonathan had apparently thrived with his father as guardian and his stepfather had not seen Jonathan since 2009:

… Surrogate’s Court granted the father’s petition for coguardianship of the person and property of Jonathan JJ. along with the Commissioner. The court also appointed the stepfather as a limited coguardian with the ability to attend only the medical appointments of Jonathan JJ. The father appeals, arguing that Surrogate’s Court erred in appointing the stepfather as a limited coguardian.

In order to modify an existing guardianship order, it must be shown that such change would further the best interests of the person who is intellectually or developmentally disabled … . Such a modification is warranted where it is necessary to protect the “‘personal and/or financial interests'” of the person with a disability … , or “as may be deemed necessary or proper for the welfare” of such person … . …

The testimony elicited at the hearing demonstrated that Jonathan JJ. has thrived from consistency in his routine and regimen. In that regard, his outbursts were a primary concern among his treatment providers, and the routine that was put in place, together with management by medical personnel, helped control the outbursts, as well as contributed to other positive physical, medical and cognitive improvements in his life. Matter of Jonathan JJ. (Alan JJ.–Caren KK.), 2022 NY Slip Op 02837, Third Dept 4-28-22

Practice Point: Any modification of an existing guardianship of a developmentally disabled adult must be found to be in the disabled person’s best interests. Here consistency in regimen and routine was paramount. The appointment of stepfather, who had not seen the disabled person since 2009, as limited coguardian was deemed a change that would disrupt the successful regimen and routine.

 

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THE PETITIONER SEEKING TO MODIFY A CUSTODY ARRANGEMENT MUST MAKE A THRESHOLD SHOWING THAT THERE HAS BEEN A CHANGE IN CIRCUMSTANCES SINCE THE LAST CUSTODY ORDER WAS ISSUED; HERE, FATHER’S WANTING MORE PARENTING TIME TO DEVELOP A CLOSER RELATIONSHIP WAS NOT A CHANGED CIRCUMSTANCE (THIRD DEPT).

The Third Department, reversing Family Court, determined father did not meet his burden of showing changed circumstances warranting an increase in parenting time. Father’s simply wanting more parenting time is not a changed circumstance:

Family Court found that a change in circumstances existed — namely, that the father wanted to have a closer relationship with the child and the amount of parenting time provided in the January 2019 order was insufficient to develop that relationship. Even crediting the father’s testimony, the father’s mere dissatisfaction with the amount of parenting time provided in the January 2019 order and the desire for more time do not constitute a change in circumstances … .. Furthermore, the record fails to show any “new developments or changes that have occurred since the [January 2019] order was entered” … . Accordingly, because the father did not satisfy his threshold burden of establishing a change in circumstances, the modification petition should have been dismissed … . Matter of Joshua KK. v Jaime LL., 2022 NY Slip Op 02847, Third Dept 4-28-22

Practice Point: A party seeking a modification of a custody order must make a threshold showing of changed circumstances. Here father’s wanting more parenting time to develop a closer relationship was not a changed circumstance. Therefore father’s petition should have been dismissed.

 

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FOR PURPOSES OF A PERMANENT NEGLECT/TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, DIRECT PLACEMENT OF THE CHILD WITH A SUITABLE PERSON MEETS THE DEFINITION OF PLACEMENT IN THE “CARE OF AN AUTHORIZED AGENCY” SUCH THAT A PERMANENT NEGLECT PROCEEDING IS AVAILABLE AFTER DIRECT PLACEMENT FOR ONE YEAR; ALTHOUGH RESPONDENT’S PARENTAL RIGHTS HAD BEEN TERMINATED WHEN THIS APPEAL WAS CONSIDERED, THE “EXCEPTION TO THE MOOTNESS DOCTRINE” WAS INVOKED (THIRD DEPT).

The Third Department, considering the appeal as an exception to the mootness doctrine in this neglect/termination-of-parental rights proceeding, determined that direct placement of the child with a suitable person met the definition of placement in the “care of an authorized agency” for purposes of the pre-requisite for a permanent neglect proceeding seeking to terminate parental rights. Family Court had ruled placement with a suitable person was not placement in the “care of an authorized agency” and dismissed the permanent neglect proceeding on that ground. The Third Department, after finding the permanent neglect proceeding should not have been dismissed, went ahead and ruled on the merits, finding that mother had permanently neglected the child:

… [W]e find Family Court’s interpretation of Social Services Law § 384-b too narrow and calling for a result that is “unnecessarily circuitous” … and ultimately contrary to the stated legislative intent (see generally Social Services Law § 384-b [1] [a]-[b]). A proceeding for termination of parental rights may be originated by an “authorized agency” such as petitioner … , seeking an order for guardianship and custody when a child is a permanently neglected child … . A “permanently neglected child” is defined as “a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or [15] out of the most recent [22] months . . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child” … .

Regarding the phrase “care of an authorized agency,” courts have consistently held that a direct placement authorized by Family Court, like the order of fact-finding and disposition issued … pursuant to Family Ct Act § 1055, falls within the purview of Social Services Law § 384-b. Matter of Frank Q. (Laurie R.), 2022 NY Slip Op 02843, Third Dept 4-28-22

Practice Point: For purposes of the prerequisite for a permanent neglect/termination-of-parental rights proceeding, a child’s direct placement with a suitable person meets the definition of placement in the “care of an authorized agency” such that the permanent neglect proceeding is available after direct placement for one year. Here, the mother’s parental rights had been terminated at the time the appeal was considered, but the “exception to the mootness doctrine” was invoked because the issue was deemed likely to recur.

 

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THE ELECTRONICALLY RECORDED HEARING INCLUDED 80 QUESTIONS POSED TO A WITNESS BY COUNSEL BUT ONLY FOUR ANSWERS WERE AUDIBLE; NEW HEARING WITH A STENOGRAPHER ORDERED (THIRD DEPT).

The Third Department determined the record on appeal was insufficient and ordered a new hearing with a stenographer. The hearing was electronically recorded. Counsel ask a witness 80 questions but only four answers were audible. Matter of Jereline Z. v Joseph AA., 2022 NY Slip Op 02848, Third Dept 4-28-22

Practice Point: If a hearing is electronically recorded but most of a significant witness’s answers are inaudible, the appeal cannot be considered. Here a new hearing with a stenographer was ordered.

 

PETITIONER WAS CHARGED WITH MAKING A COMMENT TO A FELLOW EMPLOYEE AT A SOCIAL GATHERING, WAS FOUND GUILTY AND WAS TERMINATED; THE EMPLOYEE TESTIFIED THE REMARK WAS MADE AT THE WORKPLACE; THEREFORE PETITIONER WAS FOUND GUILTY OF CONDUCT THAT WAS NEVER CHARGED; DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the determination terminating petitioner’s employment with the state, found that petitioner’s due process rights were violated because he was found guilty of conduct that was never charged. Petitioner was charged with making a comment to a fellow employee at a social gathering. But the employee testified the remark was made at the workplace:

Pursuant to Civil Service Law § 75 (1), a civil service employee “shall not be removed or otherwise subjected to any disciplinary penalty . . . except for incompetency or misconduct shown after a hearing upon stated charges.” “The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence” … . “The first fundamental of due process is notice of the charges made. This principle equally applies to an administrative proceeding for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged” …  Fundamentally, the determination made in a disciplinary proceeding “must be based on the charges made” and it is error to find a public employee guilty of uncharged specifications of misconduct and impose a penalty thereon … . Matter of Kiyonaga v New York State Justice Ctr. for the Protection of People with Special Needs, 2022 NY Slip Op 02850, Third Dept 4-28-22

Practice Point: Pursuant to the Civil Service Law, a state employee charged with official misconduct is entitled to due process, including notice of the charges. Here the petitioner was charged with making a comment to a fellow employee at a social gathering. The employee testified the remark was made in the workplace, conduct that was never charged. Petitioner was improperly found guilty of misconduct that was never charged and was terminated. The determination was annulled.

 

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THE CURRENT GOVERNOR AND LIEUTENANT GOVERNOR, AS WELL AS FORMER GOVERNOR CUOMO, ARE NECESSARY PARTIES IN THIS SUIT PURSUANT TO THE STATE FINANCE LAW CHALLENGING THE CONSTITUTIONALITY OF THE SALARY INCREASES FOR THOSE PARTIES (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the action under the State Finance Law challenging the constitutionality of the salary increases for governor and lieutenant governor should have included the current Governor and Lieutenant Governor, as well as former Governor Cuomo, as necessary parties:

CPLR 1001 (a) provides that “[p]ersons . . . who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.” When such a person “has not been made a party and is subject to the jurisdiction of the court, the court shall order him [or her] summoned” … . This requirement protects the right to due process by providing such a person the opportunity to be heard before his or her interests are adversely affected … .

… [T]he interests of the Governor and Lieutenant Governor are not necessarily being represented or protected by defendant and his counsel — the Attorney General, who would also typically represent those other state officials … ;. We cannot determine whether the Governor and Lieutenant Governor will necessarily support and integrate defendant’s argument that the resolution is constitutional; indeed, they may argue against its constitutionality, to establish precedent that would prevent a potential future intra-term diminution of their salaries. Accordingly, and as the Governor and Lieutenant Governor are subject to its jurisdiction, Supreme Court should have granted defendant’s request that those officers be joined as necessary parties and ordered them summoned (see CPLR 1001 [b] …). Arrigo v DiNapoli, 2022 NY Slip Op 02845, Third Dept 4-28-22

Practice Point: Pursuant to CPLR 1001, parties within the jurisdiction of the court must be added as necessary parties if the ultimate ruling could have an adverse effect on them.

 

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THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a two-justice dissent, determined the justification-defense jury instruction should have been given in this assault case. The defendant punched a police officer after the defendant was sprayed in the face with pepper spray:

… [T]he People introduced into evidence a video recording of the assault, in which defendant can clearly be seen punching a police sergeant after defendant is sprayed in the face with pepper spray. Testimony revealed, and the video corroborated, that the pepper spray was deployed because defendant was refusing to take off his shoes and change into footwear provided by the jail so that an officer could finish searching him before bringing him into the jail. However, the video depicts a very brief time period between the initial directive for defendant to remove his footwear and the deployment of the pepper spray. Based on this fact, combined with other circumstances surrounding the incident, we find that there is a reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario. People v Heiserman, 2022 NY Slip Op 02588, Third Dept 4-21-22

Practice Point: Here there was evidence that the police officer’s spraying defendant in the face with pepper spray constituted the use of excessive force. Defendant punched the police officer after the defendant was sprayed and was charged with assault. The failure to instruct the jury on the justification defense was reversible error. Two dissenters disagreed.

 

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