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ALTHOUGH CONSENT ORDERS ARE GENERALLY NOT APPEALABLE, HERE THERE WAS A QUESTION WHETHER MOTHER WAS ABLE TO CONSENT IN THIS CUSTODY PROCEEDING; THE ATTORNEY FOR THE CHILD CANNOT VETO THE CONSENT OF THE PARTIES (THIRD DEPT).

The Third Department, reversing Family Court, determined the consent custody order, involving mother, aunt and great-aunt, may have been invalid because mother may have been unable to consent due to some unspecified disability, The Third Department noted that consent orders are generally not appealable, but here there was a question about the validity of the consent. The Third Department also noted that the attorney for the child (AFC), who disagreed with the consent order, does not have the power to veto a the consent of the parties:

We must first note that, as a general rule, no appeal lies from an order entered on consent … . Further, although Family Court cannot relegate the AFC to a meaningless role, the AFC cannot veto a proposed settlement reached by the parties, particularly after the AFC, as here, was given a full and fair opportunity to list objections to the proposed arrangement on the record … .

Here, however, we find substantial cause to question the validity of the mother’s consent to Family Court’s order. In the course of the appearances, the parties all appeared to acknowledge that the mother lacks the ability to care for the child on her own due to some disability, although the mother’s attorney objected to such a characterization in the absence of a legal determination. The AFC expressed concern about the effect of this disability on the mother’s “ability to . . . consent to anything.” Further, Family Court stated that “[the mother is] not in a position to make decisions.” In our view, this statement directly and expressly calls into question the mother’s ability to consent to the modification order … . In this context, the troubling allegations of inappropriate sexual contact raised by the AFC are particularly serious and significant. Our limited record thus does not demonstrate that the mother’s consent to the order was valid and, if not, that the court had “sufficient information to undertake a comprehensive independent review of the child’s best interests” … .  Accordingly, in these highly unusual circumstances, we remit for a hearing and further development of the record on the issue of the mother’s ability to consent, and, if necessary, as to whether the custody proposal meets the requisite standard of promoting the best interests of the child. Matter of Erica X. v Lisa X., 2020 NY Slip Op 01224, Third Dept 2-20-20

 

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ALTHOUGH FATHER MISSED PLEADING AND DISCLOSURE DEADLINES, THERE WAS NO EVIDENCE THE OMISSIONS WERE WILLFUL; THEREFORE PRECLUDING FATHER FROM PRESENTING EVIDENCE IN THE CUSTODY MODIFICATION PROCEEDING WAS TOO SEVERE A SANCTION (THIRD DEPT).

The Third Department, reversing Family Court, determined father should not have been precluded from offering evidence in the modification of custody proceeding. Although father missed several court-imposed deadlines for responding papers and disclosure, the sanction was too severe:

… [A]lthough the father failed to comply with court-ordered deadlines for responsive pleadings and discovery, the record lacks any evidence of willfulness on the part of the father to warrant a drastic sanction of complete preclusion … . The father was represented by assigned counsel at the May 7, 2018 conference during which the initial discovery schedule was established. Shortly thereafter, the mother served a first demand for interrogatories and combined discovery demand. … In the meantime, the father was assigned new counsel who appeared for the July 16, 2018 conference, at which time the deadlines were extended. At the fact-finding hearing, the father’s counsel stated that delay in responding “is predominantly my fault and I will make that very explicitly clear on the record.” In light of the preliminary conference orders, counsel also made the meritless assertion that the mother’s discovery demands were ineffective for lacking court authorization. On the other hand, counsel did serve a response to the interrogatories — although that response was unverified. In light of the foregoing, we cannot conclude that the father’s conduct was willful. Additionally, “modification of custody determinations requires a full and comprehensive hearing with the parties given the opportunity to present in open court evidence as to the best interest[s] of the child” … . Here, the preclusion of all of the father’s testimony renders it difficult to determine the best interests of this child (see id.). Based on the foregoing, we remit the matter for a new hearing. Matter of Tara DD. v Seth CC., 2020 NY Slip Op 01227, Third Dept 2-20-20

 

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COURT SHOULD NOT HAVE DISMISSED, SUA SPONTE, FATHER’S MODIFICATION OF CUSTODY PETITION FOR FAILURE TO STATE A CAUSE OF ACTION BECAUSE MOTHER DID NOT REQUEST THAT RELIEF; THE THIRD DEPARTMENT CONSIDERED AND DENIED MOTHER’S MOTION FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge, sua sponte, should not have dismissed father’s modification of custody petition for failure to state a cause of action because mother did not request that relief. The Third Department went on to consider mother’s motion for summary judgment and deny it:

“[A] motion for summary judgment may be utilized in a Family Ct Act article 6 proceeding, but such a motion should be granted only when there are no material facts disputed sufficiently to warrant a trial” … . “In a custody modification proceeding, the controlling ‘material fact’ is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement” … .

Here, the mother failed to meet her initial summary judgment burden. There can be no dispute that only five months had elapsed since entry of the March 2018 order and, as such, the “automatic” change in circumstances provision incorporated in that order had not been triggered. The father, however, sought modification based upon several other alleged changes in circumstance, including that the mother had been disparaging the father in front of the children in violation of the March 2018 order and that she is living in a homeless shelter. The mother, in her motion for summary judgment, makes no mention of these allegations or otherwise attempts to refute them in any way. Matter of Anthony F. v Christy G., 2020 NY Slip Op 01228, Third Dept 2-20-20

 

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ALTHOUGH PLAINTIFF WAS A THIRD-PARTY BENEFICIARY OF A CONTRACT BETWEEN THE DEFENDANT AND THE COUNTY, PLAINTIFF SUED ON A NEGLIGENCE THEORY ONLY; THE NEGLIGENCE COMPLAINT PROPERLY SURVIVED SUMMARY JUDGMENT, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department determined plaintiff’s negligence claim arising from a contract properly survived summary judgment. Plaintiff qualified for the Home Energy Assistance Program. Pursuant to that program, defendant installed a chimney liner pursuant to a contract with the county. Although plaintiff was a third-party beneficiary of the that contract and could have sued on that ground, plaintiff’s complaint sounded only in negligence:

Plaintiff could have … asserted a claim for breach of contract, but limited herself to a claim for negligence that will not lie “unless a legal duty independent of the contract itself has been violated” … . It must, as a result, be shown that defendants owed a duty of care to plaintiff “spring[ing] from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … .

In assessing whether such a duty existed, we note that defendants were engaged to install a stainless steel liner in plaintiff’s chimney “in a professional manner.” Plaintiff alleges that the contracted-for work was done improperly and prevented the adequate venting of furnace exhaust. She also alleges deficiencies beyond that work, however, contending that defendants negligently failed to address visible deterioration of the chimney and surrounding roof that allowed water to infiltrate the home and caused mold growth that damaged both the home and the personalty within it. In response to defendants’ motion for summary judgment, plaintiff provided the affidavit of an engineer who opined that the obvious problems with the roof and chimney should have been addressed by defendants while they were repairing adjacent parts of the chimney. … It is further notable that the work was paid for by public funds and aimed at helping plaintiff meet her “immediate home energy needs” (42 USC § 8621 [a]), both of which show a “public interest in seeing it performed with reasonable care” … . Jones v County of Chenango, 2020 NY Slip Op 01229, Third Dept 2-20-20

 

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PETITION ALLEGED MOTHER FAILED TO GIVE ADHD MEDICATION TO THE CHILDREN; THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; BECAUSE FAMILY COURT ADDRESSED THE MERITS OF THE MOTION TO REARGUE THE MOTION WILL BE DEEMED TO HAVE BEEN GRANTED RENDERING THE ORDER APPEALABLE AS OF RIGHT (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect proceeding should not have been dismissed without a hearing. The petition alleged mother was not providing ADHD medication to the children and the children were unable to focus in school as a result. The Third Department noted that, although the denial of a motion to reargue is not appealable, here Family Court addressed the merits of the motion to reargue and will be deemed to have granted the motion:

Although, generally, no appeal lies from an order denying a motion to reargue, where “the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” … . Considering that Family Court scheduled and heard oral argument on the motion to reargue and, thereafter, issued a decision addressing the merits, we deem the court to have granted reargument, such that the December 2018 order adhering to the October 2018 order is appealable as of right … . …

“A parent’s unwillingness to follow a recommended course of psychiatric therapy and medication, resulting in the impairment of a child’s emotional health[,] may support a finding of neglect. However, what constitutes adequate medical care cannot be judged in a vacuum. The critical factor in this determination is whether the parent[ has] provided an acceptable course of medical treatment for [his or her] child in light of all the surrounding circumstances” … . Here, the petition and corresponding affidavit stated, among other things, that respondent failed to properly administer prescribed ADHD medication to the two oldest children and failed to bring them to scheduled doctor appointments, and that those children were struggling in school and were unable to focus because they were not receiving the proper dosage of medication. The petition states that these allegations are supported, in part, by information received from the children and their school. Petitioner further alleged its concern that respondent was either taking the children’s medication herself or selling it, along with the reasons for such concern. * * *

Despite the lack of allegations in the petition directly concerning the youngest child, the petition’s allegations could support a finding of derivative neglect of that child. Matter of Aydden OO. (Joni PP.), 2020 NY Slip Op 01232, Third Dept 2-20-20

 

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LOCAL LAW CREATING A SENIOR LIVING DISTRICT (SLD) WAS INVALID BECAUSE APPROVAL BY A SUPERMAJORITY OF THE TOWN BOARD WAS REQUIRED; BECAUSE THE COMPLAINT SOUGHT A DECLARATORY JUDGMENT DISMISSAL OF THE COMPLAINT WAS NOT PROPER, SUPREME COURT SHOULD HAVE RULED ON THE DECLARATORY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, in a matter of first impression, determined a local law rezoning agricultural land as a senior living district (SLD) where a senior living community could be constructed was invalid. In order to avoid the requirement that the local law be approved by a supermajority (as opposed to a simple majority) of the town board, the local law called for a 100-foot buffer between the SLD and the surrounding properties. However, in this case, the land in the 100-foot buffer was to be used for access roads and other purposes which exclusively served the SLD. In that situation, the Third Department held, the approval of the local law requires a supermajority and the local law was therefore invalid. The Third Department also noted that, because the complaint sought a declaratory judgment, dismissal of the complaint was not proper. A ruling on the declaratory judgment was required:

… [T]he SLD cannot be used for its intended purpose without improvements in the buffer zone that will serve only uses in the SLD and will provide no public benefit. Under these circumstances, we do not find that the purported buffer zone is sufficient to defeat the supermajority requirements of Town Law § 265. Notably, in holding that the distance of a buffer zone from neighboring properties should be measured from the boundary of the rezoned area rather than that of the buffer zone, the Court of Appeals found that this statutory interpretation “is fair, because it makes the power to require a supermajority vote dependent on the distance of one’s property from land that will actually be affected by the change” (Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d at 315 [emphasis added]). Here, land within the buffer zone will actually be affected by the rezoning in such a way that it would neither be fair nor consistent with the spirit and intent of Town Law § 265 to deprive neighboring landowners of the power to require a supermajority vote. We find that where, as here, a proposed buffer zone will contain improvements that benefit only the rezoned area and are necessary to the intended uses of the rezoned area, Town Law § 265 should be interpreted to require the 100-foot distance to opposing and adjacent properties to be measured from the boundary of the buffer zone rather than that of the rezoned area … . Dodson v Town Bd. of the Town of Rotterdam, 2020 NY Slip Op 01234, Third Dept 2-20-20

 

THE ARTICLE OF THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW WHICH ALLOWS INTERACTIVE FANTASY SPORTS (IFS) CONTESTS AND EXCLUDES SUCH CONTESTS FROM THE PENAL LAW GAMBLING PROHIBITIONS VIOLATES THE NEW YORK CONSTITUTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Mulvey, determined that Racing, Pari-Mutuel Wagering and Breeding Law Article 14, which states that interactive fantasy sports (IFS) do not constitute gambling and do not violate the Penal Law, violates the New York Constitution:

It is undisputed that IFS contestants pay an entry fee (something of value) in hopes of receiving a prize (also something of value) for performing well in an IFS contest. Therefore, such contests constitute gambling if their outcomes depend to “a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein,” such that they are contests of chance (Penal Law § 225.00 [1]), or if they depend on a “future contingent event not under [the contestants’] control or influence” (Penal Law § 225.00 [2]). * * *

We recognize that the Legislature was sympathetic to and supportive of IFS participants (see e.g. Racing, Pari-Mutuel Wagering and Breeding Law § 1400 [3]). Nevertheless, we have rejected the Legislature’s explicitly stated basis for the removal of IFS from the Penal Law definition of gambling (see Racing, Pari-Mutuel Wagering and Breeding Law § 1400 [1]). Moreover, as part of the same legislation that decriminalized IFS, the Legislature clearly intended that IFS contests be heavily regulated (see Racing, Pari-Mutuel Wagering and Breeding Law §§ 1400 [3]; 1402-1406). Hence, we conclude that the Legislature, if it had envisioned the possibility that courts would invalidate the majority of article 14, would not have wished to preserve the decriminalization of IFS located in Racing, Pari-Mutuel Wagering and Breeding Law § 1400 (2). Thus, we refuse to sever that provision, and invalidate it as well. White v Cuomo, 2020 NY Slip Op 00895, Third Dept 2-6-20

 

CLAIMANT, A FIELD INSPECTOR FOR A VACANT PROPERTY PRESERVATION COMPANY, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant field inspector was an employee of Safeguard Properties, a property preservation company that preserves vacant properties for lenders on homes that have delinquent loans. Claimant, who performed property occupancy inspections, was not an independent contractor and was therefore entitled to unemployment insurance benefits:

The record establishes that claimant, who did not have an inspection business or any other business entity, applied for the field inspector job upon a recommendation of a friend. Inspectors, such as claimant, were sent work orders to perform inspections on properties and were required to complete such inspections within a time frame set by Safeguard. Field inspectors were assigned a regional supervisor to contact regarding questions and problems that arose in connection with the inspections, or to request extensions of time to complete a work assignment. Safeguard prioritized the work order assignments, required field inspectors to adhere to a dress code, provided instructions as to various aspects of how a work assignment was to be completed and, with regard to claimant, paid her every two weeks. Safeguard provided a replacement if a field inspector could not perform an assignment and required field inspectors to provide 30 days’ notice of scheduled vacations, reserving the right to deny such vacation requests. Any complaints by customers or clients were handled by Safeguard.

The record also discloses that field inspectors were required to use a computer compatible with software provided by Safeguard. Safeguard provided stickers and door hangers to inspectors and required that stickers bearing Safeguard’s name be affixed to vacant properties. Safeguard tracked field inspectors’ productivity and required their participation in regular mandatory telephone conferences to discuss work quality. Disciplinary action would be imposed upon field inspectors who failed to respond to Safeguard’s contacts. Matter of Sischo (Safeguard Props. LLC–Commissioner of Labor), 2020 NY Slip Op 00894, Third Dept 2-6-20

 

THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS WARNED THE USE OF DRUGS WHILE ON FURLOUGH WOULD RESULT IN AN ENHANCED SENTENCE; MATTER REMITTED FOR RESENTENCING OR WITHDRAWAL OF THE PLEA (THIRD DEPT).

The Third Department determined the sentencing court should not have imposed an enhanced sentence because the record did not demonstrate defendant was warned the use of drugs while on furlough would result in a stiffer sentence:

… “[A] court may not impose an enhanced sentence unless, as is relevant here, it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement” … . A review of the transcript of all of the proceedings, including those at which defendant entered his guilty pleas, reflects that, although he received warnings that certain conduct could result in an enhanced sentence of up to nine years on the first indictment, he was never advised that a positive drug test could result in an enhanced sentence. Given that the furlough was granted off-the-record, the record before us does not disclose what, if any, warnings were provided to defendant prior to his release on furlough … . Moreover, when defendant objected to the enhanced sentence, the court did not advise him of the right to a hearing to contest the alleged violation … , and the record does not contain the positive drug test results, the testing date or any evidence as to when defendant consumed these drugs so as to establish that it occurred during the six-hour furlough … . Accordingly, the sentences imposed upon the first indictment must be vacated and the matter remitted to County Court to either impose the original agreed-upon sentences or to give defendant an opportunity to withdraw his guilty plea to that indictment … . People v Blanford, 2020 NY Slip Op 00646, Third Dept 1-30-20

 

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CORRECTION OFFICER NOT ENTITLED TO TWO-YEAR LEAVE OF ABSENCE; THERE WAS SUPPORT IN THE RECORD FOR THE FINDING PETITIONER’S PHYSICAL CONFRONTATION WITH AN INMATE WAS NOT AN ASSAULT WITHIN THE MEANING OF THE CIVIL SERVICE LAW (SECOND DEPT).

The Third Department, over a two-justice dissent, determined petitioner correction officer was not entitled to a two-year workers’ compensation leave of absence because there was support in the record for the finding petitioner was not assaulted. Petitioner was injured trying to prevent an inmate from swallowing contraband:

… [R]espondent advised petitioner that, pursuant to Civil Service Law § 71, his employment would be terminated … because his absence from employment … exceeded one cumulative year. Petitioner asserted through counsel that he was entitled to a two-year leave of absence under Civil Service Law § 71 because his injuries resulted from an assault sustained during the performance of his duties. * * *

Pursuant to Civil Service Law § 71, an employee who “has been separated from [his or her] service by reason of a disability resulting from occupational injury” is “entitled to a leave of absence for at least one year.” If, however, “an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years” … . * * *

Although the record demonstrates that the parolee was combative and refused orders to stop resisting and to surrender the contraband, there is no indication that the parolee directed any intentional physical act of violence toward petitioner before, during or after petitioner’s application of the body hold. Given the absence of such record evidence, respondent’s determination that petitioner’s injuries were not the result of an assault sustained during the course of employment had a sound basis in reason and, thus, was rational … . Matter of Froehlich v New York State Dept. of Corr. & Community Supervision, 2020 NY Slip Op 00652, Third Dept 1-30-20

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