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FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE CHILDREN SHOULD RECEIVE COVID VACCINATIONS; THE CHILDREN AND THEIR FATHER ALLEGEDLY WANTED THE VACCINE, MOTHER OBJECTED (THIRD DEPT).

The Third Department, reversing Family Court, determined a hearing was required before allowing the children to be vaccinated against COVID. The attorney for the children (AFC) and father, reflecting the wishes of the children, asked for court-approval for vaccination. Mother objected to vaccinating the children:

Family Court gave the parties notice that it was considering the AFC’s request and directed the parties to submit their positions to the court in writing, thus providing some limited opportunity to be heard. Having reviewed those submissions, the court rendered its decision. The court made specific findings that the subject children “have been fully informed regarding COVID-19 and the vaccine” and that they “have the capacity to consent.” These factual findings were made without evidence and based solely on hearsay, through unsworn letters containing representations by counsel. This does not constitute a sufficient basis to support these findings.

Considering that providing a vaccine constitutes medical treatment, and given the general preference toward conducting a hearing in this type of situation, we find that a hearing was required before Family Court could grant petitioner’s request over respondent’s objection … . At such a hearing, the court must focus on whether respondent’s refusal to authorize vaccination constitutes “an acceptable course of medical treatment for [her] child[ren] in light of all the surrounding circumstances,” while heeding the Court of Appeals’ cautionary point that courts cannot “assume the role of a surrogate parent” … . As the Office of Children and Family Services’ guidance documents prohibit local agencies from administering a COVID-19 vaccine if the child refuses to consent, the hearing must address whether the subject children have been fully informed about COVID-19 and the vaccine and whether they have the capacity to consent. After the hearing, the court must carefully balance the risks and benefits of the potential vaccination to decide whether to authorize it for the subject children … . Matter of Athena Y. (Ashleigh Z.), 2021 NY Slip Op 06908, Third Dept 12-9-21

 

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PETITIONER, A PROBATIONARY EMPLOYEE AND THE ONLY FEMALE MANUAL-LABOR EMPLOYEE OF THE DEPARTMENT OF PUBLIC WORKS, DEMONSTRATED SHE WAS TERMINATED SOLELY BECAUSE OF HER GENDER; SUPREME COURT PROPERLY REINSTATED HER WITH BACK PAY (THIRD DEPT).

The Third Department determined petitioner, a probationary employee of the Department of Public Works (DPW), was terminated based solely upon her gender and was properly reinstated with back pay:

Despite receiving two interim probationary reports that indicated her performance was satisfactory during the course of her employment, on April 3, 2018, petitioner was called to a meeting with respondent Daniel Crandell, DPW’s Commissioner, at which she was terminated after being told that she was “just not a good fit.” Although petitioner received a written termination letter at the close of that meeting, petitioner received no prior warning or notice of any problematic conduct. Notably, petitioner was the only female employee of DPW that was in a position of manual labor at the time of her termination. * * *

“Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason” … . * * *

Supreme Court found that, “[i]n the absence of any credible evidence that her work performance provided a basis for her termination, [it was] compelled to find that the only reason she was terminated was because of her gender.” Significantly, the court found respondents’ assertions regarding “[p]etitioner’s alleged argumentative attitude” to “reflect more of a post-termination justification for her dismissal than a valid or proper basis for the termination of her employment.” … [R]espondents failed to meet their burden of establishing a legitimate, nondiscriminatory purpose for petitioner’s termination … . Matter of Triumpho v County of Schoharie, 2021 NY Slip Op 06727, Third Dept 12-2-21

 

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DOUBLE HEARSAY SUPPORTED THE DENIAL OF THE APPLICATION TO HAVE A REPORT MAINTAINED BY THE CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT AMENDED TO BE UNFOUNDED AND EXPUNGED (THIRD DEPT).

The Third Department determined that double hearsay supported the denial of petitioner’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged:

… [O]ur review of the record confirms that the double hearsay evidence introduced at the expungement hearing was sufficiently relevant and probative to the inquiries of whether petitioner drove under the influence of alcohol with the children in the car and whether she failed to exercise a minimum degree of care in providing the children with proper supervision and guardianship by misusing alcohol to the extent of losing control of her actions … . Specifically, statements made to the investigating caseworker by the oldest and middle children, which were memorialized in the indicated report, supported the conclusion that petitioner drove under the influence of alcohol with the children in the car on at least two occasions in May 2019. Such statements were corroborated by petitioner’s admissions that, after roughly five years of sobriety, she relapsed in or around mid-May and that she “had a buzz” while driving the children. Further, the oldest child reported to the caseworker that, on the evening of May 29, 2019, she observed petitioner to be intoxicated, “sick” and “throwing up,” which prompted her to call her maternal grandparents. The oldest child’s account was corroborated by the maternal grandfather, who stated that he believed petitioner to have been intoxicated on the night in question and that it was “an ongoing concern.” Matter of Elizabeth W. v Broome County Dept. of Social Servs., 2021 NY Slip Op 06732, Third Dept 12-2-21

 

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IF A DEBT IS ACCELERATED, THE SIX-YEAR STATUTE OF LIMITATIONS FOR RECOVERY OF THE DEBT IS TRIGGERED; IF THE DEBT IS NOT ACCELERATED, THE INSTALLMENTS DUE WITHIN THE SIX YEARS PRIOR TO COMMENCING SUIT ARE RECOVERABLE (THIRD DEPT).

The Third Department determined that, because the debt was never accelerated, recovery of the installments due during the six years prior to commencement of the action is not time-barred:

The claim alleges that the [defendants] stopped making monthly payments as required by the 1988 agreement in December 2003, 15 years before the commencement of this action. “Without acceleration of the entire debt by” [plaintiff], however, “a cause of action for portions of the indebtedness” owed would only accrue when each of the individual installments became due … . The … defendants did not demonstrate that [plaintiff] accelerated the debt and, as a result, failed to sustain their burden of showing that the claim was time-barred to the extent that it sought to recover installments that became due after December 2012. DiCenzo v Mone, 2021 NY Slip Op 06734, Third Dept 12-2-21

 

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BECAUSE THE DRUG TESTING WAS FLAWED, THE SUBSTANCE PETITIONER WAS SMOKING WAS NOT IDENTIFIED AS MARIHUANA, AND THEREFORE WAS NOT PROVEN TO BE CONTRABAND; BOTH THE POSSESSION OF DRUGS DETERMINATION AND THE POSSESSION OF CONTRABAND DETERMINATION WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department determined the possession of contraband determination was not supported by substantial evidence. Petitioner was seen smoking a cigarette. When he was asked what was in the cigarette, he answered “weed.” A test was performed which identified the substance as marihuana and petitioner was charged with possession of drugs and possession of contraband. The drug possession determination was dismissed when an inconsistency in the drug testing instructions was discovered. But the contraband possession determination remained and the punishment was unchanged:

Substantial evidence does not support the determination of guilt and, therefore, we annul. “[T]he prohibition of contraband hinges on whether or not the item is authorized” … . In light of the unreliable drug test and the absence of any hearing testimony identifying the substance at issue or attesting to petitioner’s alleged admission, the substance was not adequately identified … . Accordingly, “substantial evidence does not support the determination that the substance was unauthorized and, therefore, contraband” … . Matter of Razor v Venettozzi, 2021 NY Slip Op 06740, Third Dept 12-2-21

 

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THE CREDIT BID IN THIS UCC FORECLOSURE WAS SIGNIFICANTLY BELOW WHAT A COMMERCIALLY REASONABLE BID SHOULD HAVE BEEN PURSUANT TO UCC 9-615 (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch which addresses several issues not summarized here, determined the bid in foreclosure proceedings pursuant to UCC 9-611 was too low:

Taking the position that the business cessation constituted a breach of the security agreement, [plaintiff] terminated the agreement and gave [defendants] notice of its intent to foreclose on the collateral — i.e., the outstanding medical receivables — by holding a public auction pursuant to the Uniform Commercial Code (see UCC 9-611). [Plaintiff] was the only bidder at the public auction and purchased the collateral by way of a $50,000 credit bid, which it then credited against the outstanding balance of the loan. * * *

We find that the credit bid was “significantly below” what a commercially reasonable bid should have been under the standard set forth in UCC 9-615 (f) (2) … . It follows that Supreme Court erred in awarding plaintiff damages for breach of contract. Specifin Mgt. LLC v Elhadidy, 2021 NY Slip Op 06578, Third Dept 11-24-21

 

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THE VERDICT FINDING DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS FOUND IN HIS SISTER’S APARTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT). ​

The Third Department, reversing defendant’s drug-possession conviction, determined the jury’s conclusion defendant constructively possessed the drugs was against the weight of the evidence:

… [V]iewing the evidence in a neutral light and weighing the relative probative force of the proof, the jury’s determination that defendant constructively possessed the crack cocaine was not supported by the weight of the evidence. The crack cocaine was not discovered in the same room as defendant or near him. Indeed, the officer testified on cross-examination that he did not find any drugs near defendant. Rather, the crack cocaine was found in the north bedroom, i.e., his sister’s bedroom. There was no proof indicating that any of defendant’s personal belongings were in the north bedroom … . Moreover, the crack cocaine was not seen in open view but instead underneath a pile of female clothes. Even accepting that defendant was a daily visitor to his sister’s apartment, the proof does not establish that he resided there or that he exercised any dominion or control over any part of it … . People v Cota, 2021 NY Slip Op 06574, Third Dept 11-24-21

 

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THE PEOPLE DID NOT DEMONSTRATE THE MIRANDA WARNINGS WERE READ TO DEFENDANT BEFORE HE WAS QUESTIONED; GUILTY PLEA VACATED; THERE WAS NO PROOF DEFENDANT WOULD HAVE PLED GUILTY IF SUPPRESSION HAD BEEN GRANTED, THEREFORE THE HARMLESS ERROR ANALYSIS WAS NOT APPLICABLE (THIRD DEPT).

The Third Department, reversing County Court and vacating defendant’s guilty plea, determined defendant’s statement should have been suppressed:

… [T]he People rely on the investigator having talked to the trooper and, apparently, an inference that the trooper told the investigator that he read defendant his rights. However, the trooper did not testify to having read defendant his rights; he instead testified that he had no conversation with defendant. Although hearsay is admissible in suppression hearings … , this inference based on hearsay is insufficient for the People to prove beyond a reasonable doubt that defendant was advised of his Miranda rights before being questioned. The investigator did not actually testify to what he heard the trooper say during their out-of-court conversation — that is, the investigator did not actually offer hearsay evidence that the trooper read defendant his Miranda warnings. Even if the People had proven that fact, the investigator’s conclusory assertion that defendant waived his right to counsel supplied no facts from which County Court could have rationally concluded that defendant’s waiver of his right to counsel — or any of his other rights — was knowing, voluntary and intelligent … . …

[A]bsent proof that [the defendant] would have [pleaded guilty] even if his [or her] motion had been granted, harmless error analysis is inapplicable” … . People v Teixeira-Ingram, 2021 NY Slip Op 06575, Third Dept 11-24-21

 

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THE CHILD IN THIS CUSTODY MATTER RESIDED IN ITALY, THEREFORE NEW YORK WAS NOT THE CHILD’S “HOME STATE” AND NEW YORK DID NOT HAVE JURISDICTION; FATHER’S APPLICATION FOR SUBSTITUTE SERVICE IN ITALY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court in this custody matter, determined: (1) New York was not the child’s “home state” because the child had resided in Italy for the 10 months before the action was commenced (therefore New York did not have jurisdiction): and (2) father’s application for substitute service in Italy should not have been granted because he did not make the required showing of the “impracticality” of the method of service required by the Hague Convention:

Applying the proper standard set forth in Domestic Relations Law § 76 (1) (a), it is incontrovertible that Italy, not New York, is the child’s home state. The child moved to Italy with the wife in July 2019 in accordance with the separation and settlement agreement, which clearly demonstrated the parties’ intention that the child live with the wife in Italy for a period of roughly three years. The child continued to live in Italy from July 2019 through this action’s commencement in June 2020. Although the child visited the husband in New York twice between July 2019 and February 2020, first for a period of about three weeks and later for a period of about six weeks, those periods merely constituted temporary absences that do not interrupt the six-month residency period required by the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] for home state status … . * * *

In support of his application for substituted service, the husband failed to come forward with sufficient proof demonstrating an actual effort to effectuate service upon the wife at her residence in Italy. The only proof submitted by the husband was an email — dated August 12, 2020, more than two months after commencement of the action — from an associate at a process service company that the husband’s counsel often used for service of process. The email estimated that service upon the wife in Italy in accordance with the Hague Convention would take roughly 18 to 20 weeks in total, which included “a few days” for Italian translation, 10 to 14 weeks for service and an additional two to four weeks for return of the proof of service. Although we are mindful that the COVID-19 pandemic remained an issue at the time of the August 2020 email, there was no indication in the email that the 18 to 20-week estimate was atypical or that the COVID-19 pandemic rendered service of process under the Hague Convention impracticable. Joseph II. v Luisa JJ., 2021 NY Slip Op 06586, Third Dept 11-24-21

 

THE BUILT-IN WATER HEATER WAS A “STRUCTURE” AND PLAINTIFF WAS ENGAGED IN “REPAIR” WITHIN THE MEANING OF LABOR LAW 240(1); A SHELF ROUTINELY USED AS A PLATFORM TO ACCESS THE BUILT-IN WATER HEATER COULD CONSTITUTE A DANGEROUS CONDITION WITHIN THE MEANING OF LABOR LAW 200 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined (1) the built-in water heater plaintiff was attempting to shut off was a “structure” within the meaning of Labor Law 240(1); (2) plaintiff (Eherts) was engaged in repair, a covered activity, not routine maintenance; and (3) the Labor Law 200 cause of action should not have been dismissed. The plaintiff determined it was important to turn off the water heater to prevent damage because of a suspected water main break. To access the built-in water heater it was necessary to step on suspended shelves. The shelf plaintiff stepped on gave way and he fell:

The situation here is not one of a stand-alone hot water heater accessible at floor level. To the contrary, the record shows that the hot water heater is situated above one of the store’s refrigerated units. The heater does not directly rest on top of the freezer, but on a platform suspended a few inches above the freezer by cables attached to the ceiling. The heater has a gas turnoff adjacent to it and an electric breaker switch on the actual heater. There is a shelf that runs along the top of the freezer unit that protrudes out about three feet from the freezer, approximately 12 feet above the floor surface. To access the heater, it was necessary to place a ladder against the shelf, and step over the shelf to reach the heater platform. In our view, this configuration constitutes a structure within the embrace of Labor Law § 240 (1)  … . …

The events here did not occur during a routine scheduled maintenance call. Instead, on New Year’s Day, Eherts was responding to an isolated and unexpected event, i.e., to address a low/no water pressure issue at the store caused by a municipal water main break. His direct response was to take preventative measures to, among other things, avoid damage to the hot water heater by shutting the system off. Eherts v Shoprite Supermarkets, Inc., 2021 NY Slip Op 06587, Third Dept 11-24-21

 

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