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PLAINTIFF ALLEGED STORM WATER RUNOFF FROM DEFENDANT’S PROPERTY FLOODED PLAINTIFF’S PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS DUPLICATIVE OF THE NUISANCE CAUSE OF ACTION BECAUSE NUISANCE MAY INVOLVE INTENTIONAL CONDUCT (THIRD DEPT).

The Third Department, in a decision too detailed to fairly summarize here, determined Supreme Court properly denied summary judgment in this dispute about responsibility for storm water runoff which allegedly flooded plaintiff’s property. Supreme Court, however, erred in dismissing plaintiff’s negligence cause of action as duplicative of the nuisance cause of action:

The effect of defendant’s actions was to eliminate what was described as a retention pond on the cemetery land, causing the water to back up onto plaintiff’s property, which, prior to the placement of fill, had never experienced flooding. Since the fill was placed, plaintiff’s property flooded on four occasions, and plaintiff, after the first flood in February 2009, placed defendant on notice of the flood and the resulting damages and asked for its assistance to remedy the problem. Defendant denied responsibility for the flooding and took no remedial efforts to prevent further flooding. Although the causes of action for negligence and private nuisance arise out of the same undisputed facts, it cannot be said that the private nuisance claim arises solely out of the negligence claim. To the contrary, the facts as alleged in plaintiff’s complaint and bills of particulars demonstrate a viable theory of private nuisance based upon intentional conduct, i.e., that defendant eventually knew or should have known that its actions in placing the fill caused substantial interference and nevertheless continued it … . WFE Ventures, Inc. v GBD Lake Placid, LLC, 2021 NY Slip Op 04683, Third Dept 8-12-21

 

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FATHER ACKNOWLEDGED IMPREGNATING THE OLDEST CHILD; SUMMARY JUDGMENT ON THE ABUSE AND NEGLECT ALLEGATIONS AGAINST FATHER WAS PROPER; HOWEVER THERE WERE QUESTIONS OF FACT ABOUT WHEN MOTHER LEARNED OF THE PREGNANCY AND WHETHER SHE KNEW WHO THE FATHER WAS; SUMMARY JUDGMENT ON THE ABUSE AND NEGLECT ALLEGATIONS AGAINST MOTHER SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined summary judgment on the abuse and neglect allegations against father was properly granted, but summary judgment on the abuse and neglect allegations against mother should not have been granted. Father acknowledged he impregnated the oldest child (who was eleven at the time of the birth). But there were questions of fact about whether mother knew who the father was and whether she know the child was pregnant and therefore in need of medical care:

Although it is a drastic procedural device rarely used in Family Court proceedings, Family Court may grant summary judgment in an abuse and neglect proceeding if no triable issue of fact exists … . On a motion for summary judgment, the moving party bears the burden of establishing its prima facie entitlement to judgment as a matter of law … . If this burden is met, the burden shifts to the party opposing the motion to demonstrate the existence of a material issue of fact … . In resolving a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party … .

* * * Viewing the evidence in the light most favorable to the mother and according her the benefit of every favorable inference, we cannot conclude as a matter of law that the mother knew or should have known of the father’s sexual abuse and impregnation of the oldest child or that the mother fostered or allowed the children to live in a sexually charged household.

* * * Although the mother provided some testimony as to when she learned of the pregnancy,[FN9] her testimony changed during the course of the lengthy hearing and a determination as to which, if any, of her accounts was credible is inappropriate on a motion for summary judgment … . Matter of Kai G. (Amanda G.), 2021 NY Slip Op 04682, Third Dept 8-12-21

 

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THE WARRANTLESS SEARCHES OF CLOSED CONTAINERS WERE NOT JUSTIFIED BY THE ITEMS BEING IN DEFENDANT’S “GRABBABLE” AREA OR BY “EXIGENT CIRCUMSTANCES;” CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a concurrence, determined the skimmer (a forgery device) was the product of an illegal warrantless search and should have been suppressed:

“To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” … . Specific to this “place” requirement, the item searched must be conducted within the immediate control or grabbable area of the suspect … . “The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . …

… [T]he trooper testified that he removed the fanny pack and backpack from the apartment when he left and then placed defendant — who was in handcuffs — in the patrol vehicle. Thereafter, the trooper made a cursory search of the fanny pack and backpack on the hood of the vehicle. At the time of the search, defendant was incapable of grabbing the items as he was handcuffed and inside the trooper’s vehicle. The fanny pack and backpack were in the exclusive control of the trooper and defendant could not possibly gain possession of them or destroy any evidence in them … . …

[T]he record reflects that defendant’s demeanor and actions were not threatening, he had been pat-frisked earlier in the apartment, he was cooperative and offered no resistance when he was handcuffed and … the circumstances of defendant’s arrest did not give rise to a reasonable belief that the fanny pack or backpack contained a weapon or dangerous instrument. … [T]he trooper’s testimony at the suppression hearing did not demonstrate exigent circumstances. People v Crosse, 2021 NY Slip Op 04636, Third Dept 8-5-21

 

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FAMILY COURT RELIED ON HEARSAY (WHAT MOTHER TOLD THE CASEWORKER) IN THIS NEGLECT PROCEEDING AGAINST FATHER, NEGLECT FINDINGS REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the court improperly relied upon hearsay to make neglect findings and the evidence was otherwise insufficient. Mother’s neglect petitions were disposed of after she admitted neglect. The instant proceeding concerned the neglect petitions against father (the respondent) to which mother was not a party. The caseworker testified about what mother had told her:

… [P]etitioner’s caseworker testified as to what the mother had told her based upon their conversations. In this regard, the caseworker stated that the mother told her that, while the middle and youngest children were with her, she had been drinking heavily, that the mother believed that she may have assaulted one of the children and that, after respondent took the children for a while, he came back to her with some vodka, which she drank. As respondent and the attorney for the children correctly argue, Family Court improperly relied on this hearsay testimony — i.e., what the mother told the caseworker — in reaching its determination … , and the error in doing so was not harmless … . Matter of Aiden J. (Armando K.), 2021 NY Slip Op 04637, Third Dept 8-5-21

 

PETITIONER WAITED EIGHT MONTHS WITHOUT RECEIVING A DECISION ON THE ADMINISTRATIVE APPEAL OF THE DENIAL OF HIS GRIEVANCE BEFORE FILING AN ARTICLE 78 CONTESTING THE DENIAL; PETITIONER WAS ENTITED TO THE “FUTILITY EXCEPTION” TO THE REQUIREMENT THAT HE EXHAUST ALL ADMINISTRATIVE REMEDIES BEFORE TURNING TO THE COURTS (THIRD DEPT).

The Third Department determined petitioner-inmate was entitled to the “futility exception” to the requirement that administrative remedies be exhausted before bringing an Article 78 proceeding to contest the administrative ruling. Petitioner brought a grievance alleging the Department of Corrections and Community Supervision (DOCCS) should not have reduced his pay for work in the mess hall because of his refusal to participate in certain prison programs. After the superintendent denied relief petitioner appealed to the Central Office Review Committee (CORC) but eight months passed without a decision. Then petitioner brought the Article 78:

… [P]etitioner filed his administrative appeal with CORC on December 12, 2018 and commenced this proceeding on August 19, 2019. He waited more than eight months without having received a decision — which is seven months after CORC’s 30-day limit had expired — before he commenced this proceeding. To the extent that the regulations are unclear regarding whether CORC’s failure to decide an appeal within 30 days constitutes a constructive denial, a grievant is placed in a catch-22 situation — if he or she files a CPLR article 78 proceeding before receiving a decision from CORC, DOCCS may seek dismissal based on the defense of failure to exhaust administrative remedies, but, if the grievant does not commence a court proceeding within four months after the 30-day decision period, he or she risks the possibility of DOCCS seeking dismissal based on a statute of limitations defense … . This untenable position, which arises from the confluence of CORC’s failure to comply with the regulation’s time frame for deciding administrative appeals and the lack of clarity in a different DOCCS regulation, creates substantial prejudice to a grievant such as petitioner … . Under the circumstances, we find that exhaustion should be excused based on the futility exception. Matter of McMillian v Krygier, 2021 NY Slip Op 04638, Third Dept 8-5-21

 

RESPONDENT DID NOT CONSTRUCTIVELY DENY PETITIONER’S FOIL REQUEST BY EXTENDING ITS SELF-IMPOSED DEADLINES FOR RESPONDING TO THE REQUEST (THIRD DEPT). ​

The Third Department, reversing Supreme Court, over a dissent, determined respondent NYS Department of Transportation did not constructively deny petitioner’s FOIL request by extending the time for a response. Therefore petitioner’s Article 78 proceeding was premature and was rendered moot by petitioner’s ultimate response to the request:

Generally, an agency must respond to a written request for records within a reasonable time and “there is no specific time period in which the agency must grant access to the records” … . The response protocol for an agency to follow is set forth in Public Officers Law § 89 (3) (a). An agency must respond within five business days and has various options — to either provide the records, deny the request or, as pertinent here, to “furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied” … . Respondent exercised that third option through the extension notices. Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 2021 NY Slip Op 04639, Third Dept 8-4-21

 

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IN THIS FORECLOSURE ACTION PLAINTIFF’S ATTORNEY DID NOT FILE AN AFFIRMATION AS REQUIRED BY AN ADMINSTRATIVE ORDER; THE MAJORITY DID NOT ADDRESS THE ISSUE BECAUSE IT SHOULD HAVE BEEN RAISED IN A PRIOR APPEAL WHICH DEFENDANT DID NOT PERFECT; THE DISSENT ARGUED THE ISSUE COULD AND SHOULD BE CONSIDERED ON THIS APPEAL (THIRD DEPT).

The Third Department, over a dissent, determined defendant in this foreclosure action could not raise the plaintiff’s failure to comply with an Administrative Order (AO) because it could have been raised on a prior appeal which was not perfected. The dissent argued the court could and should address the “AO” issue on this appeal:

From the dissent:

… [A] plaintiff’s attorney is required to affirm after conferring with a representative of the plaintiff and upon the attorney’s “own inspection and other reasonable inquiry” that the pleadings and submissions “contain no false statements of fact or law.”  …

… [P]laintiff’s attorney was required to file the affidavit conforming with AO/431/11 and AO/208/13, an issue that was directly raised in defendant’s motion to vacate and could have been addressed by this Court had defendant perfected his appeal from the court’s April 2018 order. In an instance such as this, this Court “has the authority to entertain a second appeal in the exercise of [our] discretion, even where a prior appeal on the same issue has been dismissed for failure to prosecute” … . Given that the filing of an attorney affirmation is mandatory and, at the latest, must be filed five business days before a scheduled auction … , I believe we should exercise our discretion and address the issue of noncompliance (id.). To assure the integrity of the foreclosure process, which is the entire objective of the Administrative Orders, we should modify the order by requiring a continued stay of any auction sale pending the submission of a compliant attorney affirmation. HSBC Bank USA, N.A. v Sage, 2021 NY Slip Op 04583, Third Dept 7-29-21

 

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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE ROAD LEADING TO PETITIONER’S PROPERTY WAS PROPERLY CERTIFIED “ABANDONED” SUCH THAT THE MUNICIPALITY IS NOT RESPONSIBLE FOR ITS MAINTENANCE; AND PETITIONER STATED AN EQUAL-PROTECTION CLAIM UNDER 42 USC 1983 (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact whether the road (Van Slyke Road) leading to petitioner’s property should have been certified “abandoned” such that the town did not have to maintain it. The two dissenters argued petitioner did not state an equal-protection claim alleging selective enforcement under 42 USC 1983:

Petitioners assert that there are many other roads in the Town that have no outlet — with no or few residences situated on them — that are maintained by the Town. Specifically, petitioners point to Snell Road and Hunt Road as being roughly equivalent to Van Slyke Road. Like Van Slyke Road, these roads are dead ends, are comprised of compressed dirt and gravel, and have only one residence. Unlike Van Slyke Road, the Town maintains these roads. … [V]iewing these allegations liberally, petitioners have stated an equal protection claim under 42 USC § 1983,  * * *

… [W]e find that triable issues of fact exist as to the use and condition of Van Slyke Road such that neither party is entitled to summary judgment on the abandonment claim … . Matter of Fernandez v Town of Benson, 2021 NY Slip Op 04584, Third Dept 7-29-21

 

CLAIMANT, AN AGENT LICENSED TO SELL LIFE INSURANCE, ANNUITIES AND OTHER INVESTMENT PRODUCTS, WAS NOT AN EMPLOYEE OF THE BROKER-DEALER AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department determined claimant agent was not an employee of broker-dealer AXA and therefore was not entitled to Unemployment Insurance benefits:

AXA Advisors LLC is a broker-dealer registered to sell life insurance policies and annuities, stocks, mutual funds and other investment products. Claimant began working for AXA under a three-year “training allowance” agreement in 1993. After that agreement terminated in 1996, claimant entered into a new agreement as a licensed agent, and he continued working in that capacity until AXA terminated the agreement in 2015. * * *

The record reflects that, under the 1996 agreement, claimant did not have a set work schedule or work location, he was not assigned a sales territory and did not have to turn in any reports. Claimant was not supervised, could work from home and could use his own computer. Claimant had to pay for the cost of his liability insurance and was not paid for any expenses. AXA required reimbursement from claimant for the cost of business cards and stationery and claimant had to pay for the use of AXA’s clerical staff and office space. Claimant was responsible for developing his own client base and, although AXA would sometimes provide a sales lead, claimant testified that he did not have to pursue it. Claimant determined what products best suited his clients’ needs and he could sell the products of AXA’s competitors. AXA did provide claimant with promotional materials, and claimant was paid by commission, with the commission rate set by AXA or whichever company offered the product that he sold to the client. Matter of Lee (AXA Advisors LLC–Commissioner of Labor), 2021 NY Slip Op 04518, Third Dept 7-22-21

 

THE UNAVAILABILIITY OF PARKING FOR WORK REQUIRED THAT CLAIMANT CROSS A DANGEROUS ROAD TO GET TO HIS WORKPLACE; THE INJURIES SUFFERED WHEN CLAIMANT WAS STRUCK BY A VEHICLE WERE THEREFORE COMPENSABLE (THIRD DEPT).

The Third Department determined the unavailability of parking for work created a special hazard. Therefore claimant’s being struck by a vehicle while walking to his place of employment resulted in a compensable injury:

… [C]laimant, a food service worker at Montefiore-Nyack Hospital, sustained serious injuries when he was struck by a motor vehicle while walking towards the hospital entrance prior to the start of his work shift. * * *

… [T]he Board could reasonably determine that a special hazard existed due to the unavailability of parking along the eastern side of Route 9W, requiring claimant to, at a certain spot without a crosswalk, cross Route 9W — a dangerous public roadway — to access the loading dock entrance, which, significantly, was not used by the public and regularly used by claimant … . Further, based upon the regular use of the loading dock entrance by claimant and other food service workers, combined with the close proximity of the accident to the loading dock area, there was a close association of the access route with the premises, as far as going and coming are concerned, permitting the conclusion that the accident happened as an incident and risk of employment. Matter of Cadme v FOJP Serv. Corp., 2021 NY Slip Op 04525, Third Dept 7-22-21

 

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