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FAMILY COURT DOES NOT HAVE THE AUTHORITY TO DIRECT THE DEPARTMENT OF SOCIAL SERVICES (DSS) TO COMMENCE A NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court does not have the authority to direct the Department of Social Services (DSS) to commence a neglect proceeding:

Neither DSS nor the attorney for the child disputes the ability of DSS to commence a neglect proceeding without leave of a court. They also do not dispute that Family Court, under Family Ct Act § 1034, may order DSS to conduct a child protective investigation and report its findings to the court. What is disputed is whether Family Court may order a child protective agency, such as DSS, to commence a neglect proceeding against a parent. …

“Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … . The relevant statute provides that a proceeding under Family Ct Act article 10 may be “originate[d]” either by “a child protective agency” or “a person on the court’s direction” (Family Ct Act § 1032 [a], [b]). In view of the express terms of the statute, Family Court has the authority to direct the commencement of a Family Ct Act article 10 proceeding. That authority, however, is limited to directing only a “person” to do so … — which DSS is not. Matter of Donald QQ. v Stephanie RR., 2021 NY Slip Op 05760, Third Dept 10-21-21

 

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PLAINTIFF, A LANDSCAPING CONTRACTOR, DID YARD WORK FOR DEFENDANT HOMEOWNER, INCLUDING SPREADING MULCH AND USING HIS OWN LADDER TO TRIM A TREE; PLAINTIFF POSITIONED THE LADDER ON THE MULCH; THE LADDER FELL OVER WHEN PLAINTIFF WAS STANDING ON IT; DEFENDANT HOMEOWNER DID NOT CREATE OR HAVE NOTICE OF THE DANGEROUS CONDITION (THE MULCH) AND DID NOT SUPERVISE OR DIRECT PLAINTIFF’S TREE-TRIMMING WORK; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendant homeowner’s motion for summary judgment in this ladder-fall case should have been granted. Plaintiff alleged defendant asked him to trim some tree branches. Plaintiff placed his own ladder on mulch which he (plaintiff) had spread there as part of his landscaping work. Plaintiff alleged the mulch constituted a dangerous condition which caused the ladder to tip. Plaintiff also alleged the owner exercised supervision and control over his work and was liable for directing him to trim the tree:

Even assuming that defendant had a conversation with plaintiff, the request to trim the trees was a general instruction about what needed to be done without any direction about how to perform the task … . It is undisputed that defendant neither provided any equipment for the project nor directed the manner in which the ladder was placed or the trimming performed … . …

As to the dangerous condition theory of liability, … defendant did not create the hazard, as it is undisputed that plaintiff and his associates were the ones who spread the mulch and placed the ladder … . Nor is there any evidence that defendant had actual or constructive notice of the allegedly dangerous condition. Defendant was not shown to have expertise in landscaping and, even if he was inside the house when the ladder was being set up on the mulch, this general awareness would be insufficient to establish notice of an unsafe condition … . Vickers v Parcells, 2021 NY Slip Op 05762, Third Dept 10-21-21

 

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PURSUANT TO CPLR 3408 (B), WHEN DEFENDANTS IN THIS FORECLOSURE ACTION APPEARED WITHOUT COUNSEL AT THE SETTLEMENT CONFERENCE, SUPREME COURT SHOULD HAVE DETERMINED WHETHER THEY WERE ENTITLED TO ASSIGNED COUNSEL, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for a finding whether defendants in this foreclosure action are eligible for assigned counsel, determined the judge did not comply with CPLR 3408 (b) at the settlement conference:

[CPLR 3408 (b)] provides that, at the initial foreclosure settlement conference, “any defendant currently appearing pro se[] shall be deemed to have made a motion to proceed as a poor person under [CPLR 1101]. The court shall determine whether such permission shall be granted pursuant to standards set forth in [CPLR 1101]” (CPLR 3408 [b]). Because defendants appeared at the June 2016 settlement conference without representation, each was “deemed to have made a motion to proceed as a poor person” and Supreme Court was required to determine such motion (CPLR 3408 [b]). Although Supreme Court erred in failing to adhere to its obligations under CPLR 3408 (b), the question remains whether defendants would have been eligible for the assignment of counsel based upon their financial circumstances. The record does not contain adequate information to render such a determination (see CPLR 1101 [a]). The eligibility for assigned counsel is a threshold issue that must be resolved before we can determine the merits of this appeal. As such, we withhold decision and remit the matter to Supreme Court to render a determination as to defendants’ eligibility for assigned counsel as of the June 2016 settlement conference … . Carrington Mtge. Servs., LLC v Fiore, 2021 NY Slip Op 05743, Third Dept 10-21-21

 

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT DEMONSTRATE RESPONDENTS (MOTHER AND FATHER) VIOLATED THE ORDER OF SUPERVISION; IN THIS ORDER-VIOLATION PROCEEDING, FAMILY COURT SHOULD NOT HAVE RELIED UPON AND REFERRED TO EVIDENCE, SOME OF WHICH WAS INADMISSIBLE HEARSAY, FROM THE UNDERLYING NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the Department of Social Services (petitioner) did not demonstrate respondents (mother and father) violated the order of supervision and Family Court should not have incorporated evidence from a separate neglect proceeding into the order-violation proceeding:

… [I]t was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. … [T]he quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence … , which was not established here. * * *

… [T]he court permitted petitioner to introduce unproven allegations against respondents from the underlying neglect proceeding, evidence relating to other conduct that predated the … order, as well as inadmissible hearsay contained in the case notes authored by petitioner’s employees and the children’s therapists. As the court’s decision is replete with references to this evidence, the admission of this evidence, if relied upon at all to establish willful violations, irreparably tainted its decision … . Matter of Nicholas L. (Melissa L.), 2021 NY Slip Op 05746, Third Dept 10-21-21

 

CLAIMANT WAS NOT AN EMPLOYEE OF A COMPANY RUNNING A WEBSITE AND APP TO CONNECT PET OWNERS WITH PET SITTERS, WALKERS AND BOARDERS, ETC. (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board (“Board”), determined claimant was not an employee of Rover, a website which connects pet owners to pet sitters, walkers, boarders, etc.:

Rover only exercises control over the platform that a provider uses to find client pet owners and not any part of the job itself … , and this type of incidental control over the provider’s services is insufficient to establish an employer-employee relationship … . More analogous to fitness instructors and odd-job taskers, and, in contrast to Uber drivers or Postmates couriers, providers are individually selected by their client pet owners and “have the ability to create a following or generate their own [repeat] customer base” … . As Rover does not exercise any control over the manner in which the providers perform their services, the means used or results produced, substantial evidence does not support the Board’s determination that Rover exercised sufficient direction, supervision and control over the providers to demonstrate an employment relationship … . Matter of Hawkins (A Place for Rover Inc.–Commissioner of Labor), 2021 NY Slip Op 05748, Third Dept 10-21-21​

 

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NOXIOUS ODORS FROM A LANDFILL DID NOT SUPPORT THE PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION; COMPLAINT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, reversing Supreme Court, determined the public nuisance and negligence causes of action stemming from odors from a landfill should have been dismissed. The public nuisance cause of action alleged only injury to the public at large, not the required special injury unique to the parties. The negligence cause of action did not allege any tangible property damage or physical injury:

… [P]laintiffs here have not asserted an injury that is different in kind from the relevant community at large, which, in our view, consists of the other homeowners and renters impacted by the landfill’s odors … . * * *

To recover in negligence, a plaintiff must sustain either physical injury or property damage resulting from the defendant’s alleged negligent conduct … . …

… [T]he noxious odors at issue are transient in nature and do not have a continuing physical presence. … [P]laintiffs have not alleged any tangible property damage or physical injury resulting from exposure to the odors. … [T]he economic loss resulting from the diminution of plaintiffs’ property values is not, standing alone, sufficient to sustain a negligence claim under New York law … . Davies v S.A. Dunn & Co., LLC, 2021 NY Slip Op 05751, Third Dept 10-21-21

Similar issues and result in Duncan v Capital Region Landfills, Inc., 2021 NY Slip Op 05757, Third Dept 10-21-21

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT MEET ITS BURDEN OF PROOF ON ITS ABANDONMENT CLAIMS IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; PETITION DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the petitioner (Department of Social Services) did not meet its burden of proof on whether respondent had abandoned the child in this termination-of-parental-rights proceeding:

“A finding of abandonment is warranted when it is established by clear and convincing evidence that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the filing of the abandonment petition, although able to do so and not prevented or discouraged from doing so by petitioner” ( … see Social Services Law § 384-b [5] [a] …). It is presumed that a parent has the ability to visit and/or communicate with his or her child and, therefore, “[o]nce the petitioning agency establishes that the parent failed to maintain contact with his or her child, the burden shifts to the parent to prove an inability to maintain contact or that he or she was prevented or discouraged from doing so by the petitioning agency” … . …

The caseworker… only observed two … visitations, each for only a limited period of time, during which she acknowledged that respondent brought snacks for the child. Respondent was otherwise precluded from making any other attempts to contact the child — i.e., telephone calls — outside of her scheduled supervised parenting time. The caseworker … acknowledged that … respondent was hospitalized with an injury that required emergency brain surgery, which prevented her from exercising one of her scheduled visitations that month, and respondent subsequently executed a medical release so that petitioner could verify same. … [A]lthough the caseworker initially indicated that she had not had any contact with respondent since May 2019, during cross-examination she indicated that respondent had, in fact, called her one or two times during the relevant time period. Matter of Khavonye FF. (Latasha EE.), 2021 NY Slip Op 05753, Third Dept 10-21-21

 

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SUPREME COURT ADDRESSED THE MERITS OF THE ACTION WITHOUT DISCOVERY AND TRIAL; THE COURT SHOULD ONLY HAVE DECIDED WHETHER PETITIONER WAS ENTITLED TO A PRELIMINARY INJUNCTION; MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Supreme Court and remitting the matter to a different judge, determined this breach-of-contract/preliminary-injunction/declaratory-judgment/Article-78 proceeding should not have been decided on the merits without discovery, the filing of a note of issue and a trial. The court should have decided only whether petitioner was entitled to a preliminary injunction. Petitioner is a contractor hired by respondents to install a water system for snow-making for ski trails. Respondents terminated the contract for cause and petitioner brought an action for a preliminary injunction (prohibiting respondents from awarding the contract to others without competitive bidding), a declaratory judgment, and breach of contract:

… Supreme Court should have confined … its determination to whether petitioner was entitled to a preliminary injunction. … Supreme Court prematurely resolved the merits of petitioner’s declaratory judgment cause of action and respondents’ counterclaims, without first affording the parties their rights to discovery and a jury trial on the claims/counterclaims raised in the plenary action (see CPLR 3103 [a]; 4101 …), and without a note of issue and certificate of readiness having been filed. Moreover, Supreme Court did not acknowledge or address petitioner’s third cause of action for breach of contract, even though the plenary action involves, at its heart, a contract dispute. Although petitioner also asserted a cause of action for a declaratory judgment, the award of declaratory relief hinges on the resolution of the contract dispute — that is, whether respondents wrongfully terminated the contract for cause under the terms of the contract. Matter of Murnane Bldg. Contrs., Inc. v New York State Olympic Regional Dev. Auth., 2021 NY Slip Op 05756, Third Dept 10-21-21

 

THE 2012 SENTENCE IMPOSED WITHOUT CONSIDERING WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS WAS NOT ILLEGAL OR UNAUTHORIZED UNDER THE LAW IN EFFECT AT THE TIME; THEREFORE A MOTION TO VACATE THE SENTENCE ON THAT GROUND IS NOT AVAILABLE (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Aarons, determined the defendant’s motion to vacate his 2012 conviction because the sentencing court did not consider whether he should be afforded youthful offender status should not have been granted. At the time the law was changed to require consideration of youthful offender status the defendant’s case was not on appeal and the law-change was not made retroactive such that it could be considered in a collateral proceeding (motion to vacate):​

… [T]his appeal does not concern the legality of the sentence imposed after a determination had been made whether a defendant should or should not be accorded youthful offender status or, indeed, the legality of any aspect of defendant’s 2012 sentence. Rather, the appeal centers on the failure to determine, in 2012, whether defendant should have been given youthful offender status — a finding that ultimately goes to the judgment of conviction. Accordingly, … CPL 440.20 — a statute that empowers a court to set aside an unauthorized, illegal or invalid sentence — does not authorize the relief granted by Supreme Court … . …

… [I]n limiting the application of the new interpretation of CPL 720.20 (1) to “cases still on direct review,” the Court of Appeals expressly indicated that it was not available to permit “collateral attacks on sentences that have already become final” (People v Rudolph, 21 NY3d at 502). Thus, as a result of the Rudolph decision, convicted defendants gained the right to argue on direct appeal their entitlement to a resentencing at which the court will make a youthful offender determination. The Rudolph decision, however, did not authorize that relief in a collateral proceeding pursuant to CPL 440.20. In foreclosing retroactive application of the new rule announced in Rudolph to collateral proceedings, the Court of Appeals necessarily rejected the view that sentences imposed under its prior precedent were illegal, unauthorized or invalid. People v Vanderhorst, 2021 NY Slip Op 05141, Third Dept 9-30-21

 

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THE PURCHASE OF A CHECK CASHING BUSINESS DID NOT TRANSFER THE UNEMPLOYMENT INSURANCE OBLIGATIONS OF THE SELLER TO THE PURCHASER; THE LABOR LAW 581 CRITERIA FOR THE TRANSFER OF UNEMPLOYMENT INSURANCE OBLIGATIONS WERE NOT MET (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the unemployment insurance obligations of PTL Check Cashing Corp. were not transferred to PLS Check Cashiers of New York Inc. when PLS entered an asset purchase agreement with PTL in order to acquire PTL’s license to operate at PTL’s former location in the Bronx:

“Labor Law § 581 establishes an experience-rating system that allows for variations in the unemployment insurance contribution rates from the standard rate of qualified employers in certain situations” … . Under the statute, when a business is transferred either whole or in part from one employer to another, the transferee shall take over and continue the unemployment insurance experience account of the transferor … . A transfer, however, will not be deemed to have occurred if (1) the transferee has not assumed any of the transferor’s obligations, (2) the transferee has not acquired any of the transferor’s goodwill, (3) the transferee has not continued or resumed the transferor’s business either in the same establishment or elsewhere, and (4) the transferee has not employed substantially the same employees as those of the transferor … . …

It is undisputed that PLS did not assume any of PTL’s financial obligations and did not hire any of its employees. Moreover, while PLS operated from the same Bronx location, its business included a variety of financial services and was not limited to check cashing, which was PTL’s sole business. Significantly, the ability to operate from the Bronx location was necessary in order for PLS to obtain a license from the Department of Financial Services given the geographic limitations applicable to businesses that offer check cashing services. Although the asset purchase agreement listed other property included in the sale, PLS’s president testified that the tangible assets were disposed of and the only asset that was of value was the opportunity to acquire the license to operate from the Bronx location. Notwithstanding the fact that goodwill was generally referenced as property included in the sale, PLS did not use PTL’s brand, logo or phone number and had its own customer base, negating any expectation that it would be patronized by PTL’s customers. In view of the foregoing, substantial evidence does not support the Board’s finding that a transfer of business occurred under Labor Law § 581 (4) such that PLS acquired the unemployment insurance experience rating of PTL … . Matter of PLS Check Cashiers of N.Y. Inc. (Commissioner of Labor), 2021 NY Slip Op 05142, Third Dept 9-30-29

 

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