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FATHER WAS NOT ENTITLED TO SUMMARY JUDGMENT TERMINATING HIS PARENTAL RIGHTS ON THE GROUND HIS 18-YEAR-OLD CHILD HAD ABANDONED HIM (THIRD DEPT).

The Third Department, reversing Family Court, determined father was not entitled to summary judgment on his petition to terminate his parental rights on the ground that the 18-year-old had abandoned him:

… [T]he father did not establish his entitlement, as a matter of law, to termination of his child support obligation on the ground of abandonment. Although the father’s submissions detailed his efforts to establish a relationship with the child and the child’s repeated rebuffs of those efforts, the father’s proof failed to demonstrate as a matter of law that the child’s refusal to have contact with him was totally unjustified, particularly given the father’s prolonged absence from the child’s life and the child’s developmental disability and other diagnoses. Such factual issues warranted a full evidentiary hearing and should not have been summarily resolved by Family Court … . Although Family Court had knowledge of prior proceedings between the parties, the justification issue had never been squarely before Family Court and required the presentation of evidence, including potential expert testimony, concerning the impact of the child’s developmental disability and other diagnoses on the child’s refusal to have contact with the father. Matter of Thomas GG. v Bonnie Jean HH., 2020 NY Slip Op 05988, Third Dept 10-22-20

 

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NEITHER THE “HABIT” NOR THE “ERROR IN JUDGMENT” JURY INSTRUCTION WAS APPROPRIATE IN THIS MEDICAL MALPRACTICE CASE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the defense verdict in this medical malpractice case and ordering a new trial, determined: (1) the “habit” jury instruction should not have been given; (2) the “error in judgment” jury instruction should not have been given; and (3) plaintiff’s expert cardiologist should have been allowed to testify about the appropriateness of taking plaintiff off the anti-coagulant medication, DAPT. Plaintiff had a heart attack in 2012 and was put on DAPT permanently by his cardiologist to prevent blood clots. In 2014 defendant cardiologist agreed to the defendant gastroenterologist’s request to have plaintiff stop taking DAPT temporarily to allow a colonoscopy procedure. While plaintiff was off the DAPT he had another heart attack:

… [T]he very conduct that is the subject of the [habit] charge in question is the “course of treatment regarding patients they held in common.” In order for a habit charge to be appropriate, the proof must demonstrate “‘a deliberate and repetitive practice by a person in complete control of the circumstances'” … . “On no view . . . can conduct involving not only oneself but particularly other persons . . . produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged” … . Here, neither defendant had complete control, and both defendants testified that their decisions regarding temporary cessation of DAPT prior to or after a colonoscopy varied depending on the circumstances of each patient. …

An error in judgment charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . “A distinction must therefore be made between an ‘error in judgment’ and a doctor’s failure to exercise his or her best judgment. Giving the ‘error in judgment’ charge without regard for this distinction would otherwise relieve doctors whose conduct would constitute a breach of duty from liability” … . Here, the primary issue at trial was whether defendants deviated from the standard of care in determining to temporarily cease [plaintiff’s] DAPT both before and after his colonoscopy. There was no evidence presented that defendants chose between two or more medically accepted alternatives … . …

Plaintiffs’ cardiology expert established that he had knowledge and expertise in this area and should not have been barred from testifying as to whether [the gatroenterologist’s] decision to temporarily cease DAPT for 14 days after the colonoscopy was a departure from the standard of care … . Michalko v Deluccia, 2020 NY Slip Op 05991, Third Dept 10-22-20

 

PLAINTIFF, WHO WAS INTOXICATED AND TRESPASSING, WAS INJURED FALLING THROUGH AN OPENING IN THE FLOOR OF A HOUSE UNDER CONSTRUCTION; THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S PRESENCE WAS FORESEEABLE AND PLAINTIFF’S INTOXICATION WAS NOT A SUPERSEDING CAUSE AS A MATTER OF LAW; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff, who was intoxicated, entered defendants’ construction site at 3:00 am and fell through an opening in the floor of a house under construction. Because defendants were aware of trespassers entering the site in the past, there was a question of fact whether the accident was foreseeable. The fact that plaintiff was intoxicated was not a superseding cause, although it may speak to comparative negligence:

… [A] triable issue of fact exists as to whether plaintiff’s presence on the property was foreseeable. The testimony … confirmed that it was common knowledge that people would routinely walk through houses still under construction. On this record, reasonable persons could disagree as to whether it was foreseeable for plaintiff to be on the subject property and whether defendants reasonably secured the property, thereby precluding summary judgment to defendants on this ground … . …

“An intervening act will be deemed a superseding cause and will serve to relieve [a] defendant of liability when the act is of such an extraordinary nature or so attenuates [the] defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” … . Here, plaintiff had never been to the property before, and defendants did not establish that he either knew or should have known that such conduct was dangerous … . Further, there are triable issues of fact as to whether there was a no trespassing sign on the property, whether the property was properly secured to prevent entry and even whether the floor opening was covered. Although defendants’ expert opined that plaintiff was extremely intoxicated when he entered the property, [plaintiff’s friend] did not observe plaintiff having any difficulty walking. Plaintiff’s alcohol impairment may well have played a significant role in plaintiff’s accident for comparative fault purposes, but that fact does not exonerate defendants from liability as a matter of law … . Desroches v Heritage Bldrs. Group, LLC, 2020 NY Slip Op 05992, Third Dept 10-22-20

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FATHER’S CHILD SUPPORT OBLIGATIONS CONTROLLED BY THE JUDGMENT OF DIVORCE, NOT THE CONFLICTING PROVISIONS OF THE SEPARATION AGREEMENT (THIRD DEPT).

The Third Department, reversing Family Court, determined the provisions in the judgment of divorce, not the separation agreement, controlled father’s child support obligations:

Although the parties entered into a separation agreement directing what the husband was to pay for child support, the subsequent judgment of divorce specifically provided that “the child support obligations of the parties hereto shall be as directed by the [c]orrective [o]rder of [s]upport . . . entered on November 16, 2017.” A conflict therefore exists between the separation agreement and the subsequently entered judgment of divorce. In such circumstance, the judgment of divorce controls … .

Although Family Court was without jurisdiction to modify the terms of the separation agreement (see Kleila v Kleila, 50 NY2d 277, 282 [1980]), the fact that the corrective order of support was denominated as an order by Family Court or that it emanated from a Family Court proceeding does not mean the terms therein are invalid. The parties voluntarily consented to the terms in the corrective order of support. Additionally, there is nothing in the record indicating that the parties disputed any of those terms. Under these circumstances, and because the judgment of divorce specifically stated that the parties’ child support obligations were to be determined by the corrective order of support, we are not of the view that Family Court modified the separation agreement. Sherman v Sherman, 2020 NY Slip Op 05993, Third Dept 10-22-20

 

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LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE FOR PLAINTIFF’S COUNSEL’S FAILURE TO APPEAR AT THE MANDATORY CONFERENCE IN THIS FORECLOSURE ACTION; PLAINTIFF BANK’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the default judgment should have been granted. The Third Department found that law office failure provided a reasonable excuse for the failure of the bank’s counsel to appear at the mandatory conference in this foreclosure action (22 NYCRR 202.27 (b)):

… [P]laintiff was required to demonstrate a reasonable excuse for its failure to appear at the conference and the existence of a potentially meritorious claim … . A determination of reasonable excuse is left to the sound discretion of Supreme Court and will only be disturbed where there has been a clear abuse of that discretion … . In exercising this discretion, Supreme Court may accept law office failure as an excuse “where the claim of law office failure is supported by a detailed and credible explanation of the default” … . …

Counsel explained that he was on vacation in Europe on the day scheduled for the conference. When counsel realized this mistake, he contacted Supreme Court and requested to appear telephonically. Supreme Court accommodated this request and, according to counsel, offered to initiate the call. However, when counsel did not receive a telephone call at the scheduled time, he telephoned chambers, and was informed that defendants had not yet appeared. Counsel avers that he never received a follow-up telephone call from Supreme Court. Counsel also provided his telephone records showing the outgoing calls that he had made that morning to chambers and no incoming calls from Supreme Court. As such, plaintiff demonstrated a reasonable excuse for not appearing at the conference. U.S. Bank, N.A. v Clarkson, 2020 NY Slip Op 05994, Third Dept 10-22-20

 

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DEFENDANT RETAILER’S EMPLOYEE ALLEGEDLY ATTEMPTED TO FIX A MALFUNCTIONING CROSSBOW AND RETURNED IT TO PLAINTIFF IN VIOLATION OF THE RETAILER’S RETURN POLICY; PLAINTIFF ALLEGED HE WAS THEREAFTER INJURED BY THE CROSSBOW; THE RETAILER’S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the negligence cause of action against the defendant retailer which sold an allegedly defective crossbow to plaintiff should not have been dismissed. Plaintiff alleged when he returned the malfunctioning crossbow to the retailer an employee attempted to fix it and gave it back to the plaintiff. Plaintiff alleged he was thereafter injured by the crossbow:

… [E]ven accepting that defendant had no duty to warn plaintiffs of the alleged defect in the crossbow, it was not entitled to summary judgment dismissing plaintiffs’ negligence claim. Plaintiffs gave deposition testimony in which they explained that they were injured by the crossbow in separate incidents and that, when plaintiff James Garrison returned the crossbow to defendant’s store after the first incident, one of defendant’s employees attempted to repair it and gave it back to Garrison. Viewing the evidence in the light most favorable to plaintiffs as the nonmoving parties and accepting their account of events as true … , a duty of care arose when the employee chose to undertake the crossbow repair … , and the fact that the repair violated defendant’s return policy for defective or damaged items constituted some evidence of negligence … . Defendant produced no evidence that conclusively demonstrated plaintiffs’ accounts to be untrue or showed the employee’s actions to have played no role in the second crossbow malfunction. Garrison v Dick’s Sporting Goods, Inc., 2020 NY Slip Op 05996, Third Dept 10-22-20

 

CLAIMANT PURCHASED OFFICE FURNITURE AFTER HE WAS HIRED TO WORK FROM HOME AND WAS INJURED CARRYING THE FURNITURE TO HIS HOME OFFICE; THE WORKER’S COMPENSATION BOARD SHOULD NOT HAVE ANALYZED THE CASE UNDER A RIGID NEW STANDARD FOR EMPLOYEES WORKING FROM HOME; MATTER REMITTED FOR APPLICATION OF THE LONG-ESTABLISHED STANDARD (THIRD DEPT). ​

The Third Department, reversing the denial of benefits and remitting the matter to the Workers’ Compensation Board, determined claimant, who was hired to work from home, may be entitled to workers’ compensation benefits stemming from moving boxes during claimant’s lunch hour. Claimant was told by his employer the company would not pay for office furniture. Claimant purchased the office furniture and was injured when carrying the boxes upstairs to his home office. The court addressed how workers’ compensation principles should be applied to working from home:

… [T]he Board eschewed the foregoing principles in favor of a rigid new standard for employees working from home under which injuries are only compensable if occurring during regular work hours and while the employee is actively engaged in work duties as opposed to, for example, taking a short break or using the bathroom. This novel standard is unsupported by precedent, is inconsistent with “the remedial nature of the Workers’ Compensation Law” and cannot be countenanced … . A “regular pattern of work at home” renders the employee’s residence “a place of employment” as much as any traditional workplace maintained by the employer … . As a result, inasmuch as the Board determined that claimant was injured during his regular work shift … , the compensability of his injury should have been determined using the long-established standard.

We accordingly remit for the Board to apply that standard and determine whether claimant, when moving the boxes, was engaged in a “purely personal” activity that was not “reasonable and sufficiently work related under the circumstances” … . Matter of Capraro v Matrix Absence Mgt., 2020 NY Slip Op 06000, Third Dept 10-22-20

 

ALTHOUGH THERE WAS EVIDENCE CLAIMANT MADE A FALSE STATEMENT ABOUT THE LEVEL OF HER INVOLVEMENT IN AN ONLINE BUSINESS WHILE SHE WAS RECEIVING WORKERS’ COMPENSATION BENEFITS, SHE WAS FORTHRIGHT ABOUT HER INVOLVEMENT WHEN QUESTIONED; PERMANENT DISQUALIFICATION FROM FUTURE BENEFITS WAS NOT WARRANTED (THIRD DEPT).

The Third Department, modifying the Workers’ Compensation Board, determined there was support in the record for the finding claimant omitted from her application for benefits that she was selling items online while receiving benefits, but the record did not support a permanent disqualification from future benefits. Claimant omitted the information because she had not turned a profit, but she was forthright about the online business when questioned about it:

“The fact that claimant had not yet realized a profit from [the activities] does not diminish [her] obligation to provide true and accurate information regarding [her] employment activities and such misrepresentations are clearly material to [her] claim” … . The evidence here revealed that claimant failed to accurately disclose her level of activity … . …

We note that claimant was readily forthcoming about her activities when questioned and declined to cash benefits checks after she resumed part-time work with the employer … . Based on all the circumstances presented, we do not find adequate support for the Board’s determination that claimant engaged in “an egregious pattern of conduct,” thus warranting permanent disqualification from future wage replacement benefits … . Matter of Conliffe v Darden Rest., 2020 NY Slip Op 06001, Third Dept 10-22-20

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FAMILY COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION TO DECLARE THE PARENTAGE OF A CHILD BORN TO A MARRIED SAME-SEX COUPLE BECAUSE THE CHILD WAS NOT BORN “OUT-OF-WEDLOCK;” RECENTLY ENACTED LEGISLATION WILL SOON ALLOW SUCH A PETITION IN FAMILY COURT AND THE PARTIES MAY NOW SEEK A DECLARATORY JUDGMENT ON THE ISSUE IN SUPREME COURT, WHICH HAS SUBJECT MATTER JURISDICTION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, determined Family Court did not have subject matter jurisdiction over the petition to declare petitioners, a same-sex married couple, as the legal parents of the child conceived with donated sperm. Although the Family Court Act allows the court to determine “paternity” for a female parent, the court’s jurisdiction in that regard is limited to children born out-of-wedlock. The Third Department noted that legislation will soon allow a Family Court petition for a judgment of parentage and Supreme Court has jurisdiction to hear an application for a declaratory judgment on the issue:

… [T]he Legislature has only empowered Family Court to hear “proceedings to determine [parentage] and for the support of children born out-of-wedlock” … and further defined a child in Family Ct Act article 5 as one “born out of wedlock” … . Petitioners were married at all relevant times, and their child was not born out of wedlock. …

We note the recent enactment of Family Ct Act article 5-C, which will soon allow a petition for a judgment of parentage … . Moreover, if petitioners articulate how “an adjudication of the merits will result in immediate and practical consequences to” them … , they are presently free “to bring a declaratory judgment action in Supreme Court to determine the status of the child and the rights of all interested parties” … . Matter of Alison RR, 2020 NY Slip Op 06002, Third Dept 10-22-20

 

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THE RECORD DOES NOT DEMONSTRATE WHETHER THE DEFENDANT REVIEWED THE VERDICT SHEET WHICH INCLUDED UNAUTHORIZED ANNOTATIONS BY THE JUDGE; MATTER REMITTED FOR A RECONSTRUCTION HEARING (THIRD DEPT).

The Third Department, remitting the matter for a reconstruction hearing, determined the defendant’s consent to the judge’s annotations on the verdict sheet was required. Although the record indicated defense counsel was aware of the annotations and did not object, it was not clear from the record whether the defendant was shown the verdict sheet with the annotations:

“CPL 310.20 (2) allows the trial court, when submitting two or more counts charging offenses from the same article of law, to set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished. Absent a defendant’s consent, any other notations on the verdict sheet offend the letter of the law” … . “Although generally the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent, it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel fails to object to the verdict sheet after having an opportunity to review it” … . …

… [T]he notations as to counts 3 and 4 were not [authorized] … . Accordingly, defendant’s consent was required. To that end, at the conclusion of the court’s instructions to the jury, including an explanation of the annotations on the verdict sheet, the court explicitly asked the People and defense counsel if they had any additional requests or exceptions to the charge. Defense counsel answered in the negative. … [W]e cannot determine from the record whether defendant had an opportunity to review the verdict sheet because the charge conference was held off the record in County Court’s chambers. People v Chappell, 2020 NY Slip Op 05978, Third Dept 10-22-20

 

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