NEGLIGENCE
 

Ambulance Services Provided by Municipality Constitute a Governmental, Not Proprietary, Function

 

In a full-fledged opinion by Judge Graffeo, with two concurrences, the majority determined ambulance assistance rendered by first responders is a governmental, not proprietary, function.  The majority also concluded a question of fact had been raised about whether the city owed a “special duty” to the plaintiff, who suffered serious brain damage after going into anaphylactic shock.  Judges Smith and Abdus-Salaam disagreed with the majority and would have found that the ambulance service was a proprietary function.  The Court explained:

 

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to non-governmental parties…. A government entity performs a purely proprietary role when its "activities essentially substitute for or supplement traditionally private enterprises"…. In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are "undertaken for the protection and safety of the public pursuant to the general police powers" …. * * *

 

If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a "special duty" to the injured party. The core principle is that to "'sustain liability against a municipality, the duty breached must be more than that owed the public generally'"… .  Applewhite, et al, v Accuhealth, Inc, et al, No 86, CtApp 6-25-13

 

 

Hospital Did Not Owe Intoxicated Patient a Duty to Prevent Him from Leaving Hospital

 

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Smith, determined (under the facts of the case) a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving a hospital.  The patient was struck by a car an hour or two after leaving. 

 

…Mental Hygiene Law § 22.09 specifically addresses the question of when a hospital may retain "a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol . . . in his or her body" (Mental Hygiene Law § 22.09 [a] [1]). The statute deals separately with the case of an intoxicated person "who comes voluntarily or is brought without his or her objection" to a hospital or other treatment facility (§ 22.09 [d]) and one "who is brought with his or her objection" (§ 22.09 [e]). In the latter case, the person "may be retained for emergency treatment" if he or she is examined by a doctor and found to be incapacitated to such a degree that "there is a likelihood to result in harm to the person or others" (§ 22.09 [e]); a "likelihood to result in harm" to oneself must be "manifested by threats of or attempts at suicide or serious bodily harm or other conduct" that demonstrates a danger of self-injury (Mental Hygiene Law § 22.09 [a] [3]). For the former category -- people who, like plaintiff, come to the hospital voluntarily -- the Mental Hygiene Law makes no provision for involuntary retention.

 

Plaintiff concedes that he could not have been retained under Mental Hygiene Law § 22.09. He argues that the Mental Hygiene Law is not the only possible source of a right to confine an intoxicated person. We need not decide that question: Plaintiff cites no other statute, and there is no principle of common law, that would permit the restraint of a patient on the facts of this case.  Kowalski v St Francis Hospital and Health Centers, et al, No 128 6-26-13

 

 

Contractual Relationship Did Not Preclude Causes of Action Sounding in Tort

 

In affirming most of Supreme Court’s denial of a defendant’s motion for summary judgment, the Fourth Department explained why the economic loss doctrine did not preclude plaintiff’s recovery in tort, in spite of the contractual relationship between plaintiff and defendant and the contract-based causes of action in the complaint.  Pursuant to two contracts, the defendant supplied electronics and fluorescent-tube recycling systems which allegedly failed resulting in mercury contamination:

 

...[T]he economic loss doctrine does not preclude plaintiff from recovering in tort as a matter of law.“ Pursuant to that doctrine, a plaintiff may not recover in tort against a manufacturer for economic loss that is contractually based, ‘whether due to injury to the product itself or consequential losses flowing therefrom’ ”…. Where, however, there is harm to persons or property other than the property that is the subject of the contract, a plaintiff is entitled to recover in tort… .  The factors to consider are “the nature of the defect, the injury, the manner in which the injury occurred, and the damages sought”…. We conclude that defendant failed to meet its initial burden on the motion with respect to the causes of action sounding in tort because the evidence submitted by defendant establishes that the mercury contamination of plaintiff’s facility, which was allegedly caused by defendant’s products, caused damage to persons and property other than the property that was the subject of the contracts.   Electrical Waste Recycling Group, Limited v Andela Tool & Machine, Inc…, 626, 4th Dept 6-28-13

 

 

Voluntary Participation in Fight Precludes Suit Alleging Inadequate Building Security

 

The First Department determined that plaintiff’s voluntary participation in a fight severed any causal connection between his injuries and the defendant building owner’s and defendant building manager’s alleged failure to keep the premises safe:

 

Courts in all four judicial departments have found that one who voluntarily participates in a physical fight cannot recover from a party generally charged with ensuring a safe environment. Thus, in Williams v Board of Educ. of City School Dist. of City of Mount Vernon (277 AD2d 373 [2d Dept 2000]), the duty of supervision normally imposed on a school was found to have been displaced by the plaintiff student's voluntary participation in a fight. Similar results obtained in Borelli v Board of Educ. of Highland School Dist. (156 AD2d 903 [3d Dept 1989) and in Ruggerio v Board of Educ. of City of Jamestown (31 AD2d 884, 884 [4th Dept 1969] [holding that "(p)laintiff's conduct, demonstrating a lack of reasonable regard for his own safety, was a direct cause of the incident resulting in his injury and, as such, defeats his right of recovery against the defendant Board of Education"], affd 26 NY2d 849 [1970]).  This Court in Vega v Ramirez (57 AD3d 299 [1st Dept 2008]) also held that a plaintiff's willing participation in a fight negates any negligence committed by a defendant with a duty to provide security.  Carreras v Morrisania Towers Hous Co Ltd Partnership, 2013 NY Slip Op 04893, 1st Dept 6-27-13

 

 

 

Company Hired on On-Call Basis for Elevator Repair Not Liable for Allegedly Faulty Elevator Door Interlock Where Last Repair Made 13 Months Before Accident

 

Plaintiff’s decedent fell down an elevator shaft, allegedly due to the condition of a door interlock.  The First Department determined the wrongful death complaint against New York Elevator and Electrical Corporation (NYE) should have been dismissed because the company was retained only on an on-call basis for repairs and there was no evidence NYE was negligent when it inspected the elevator 13 months before the accident:

 

The amended complaint should have been dismissed as against defendant/third-party plaintiff NYE in its entirety. NYE did not have an exclusive agreement with Broadway to maintain or service the freight elevator…. It was merely retained on an on-call basis to make specific repairs and inspections and, therefore, did not have a duty to inspect or repair unrelated defects…. Indeed, NYE may only be held liable if it failed to exercise reasonable care in making any requested repairs or inspections….  Casey v New York El & Elec Corp, 2013 NY Slip Op 04745, 1st Dept 6-25-13

 

 

 

Theories Not Included in Notice of Claim Precluded

 

In a slip and fall case, the First Department precluded plaintiff from asserting theories of liability not in the notice of claim:

 

The notice of claim limited plaintiffs' theory of liability to negligent maintenance, upkeep and repair of the subject staircase, asserting that the infant plaintiff was caused to slip and fall due to a liquid substance on the floor and inadequate lighting. The infant plaintiff testified that he was caused to fall by "slippery juice" that was "all over the stairs." He testified that he wasn't able to see all of the juice due to insufficient lighting. Plaintiffs' new theory, in opposition to the motion for summary judgment, that the infant plaintiff was caused to slip and fall due to various design defects including, inter alia, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials, is precluded… Rodriguez v Board of Educ of the City of NY, 2013 NY Slip Op 04912, 1st Dept 6-27-13

 

 

 

Late Notice of Claim Properly Allowed in Absence of Reasonable Excuse

 

The Second Department affirmed Supreme Court’s grant of leave to serve a late notice of claim against a school district, in the absence of a reasonable excuse:

 

Here …[t]he District…acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. The District's employee witnessed the infant petitioner's accident, which occurred during supervised cheerleading practice, and a designated school authority prepared a medical claim form within a week after the accident…. Furthermore, the infant petitioner was transported from the school to the hospital to be treated for a broken arm…. Since the District acquired timely knowledge of the essential facts constituting the petitioners' claim, the petitioners met their initial burden of showing a lack of prejudice…. The District's conclusory assertions of prejudice, based solely on the petitioners' two-month delay in serving the notice of claim, were insufficient to rebut the petitioners' showing….  While the petitioners' excuses for their failure to serve a timely notice of claim were not reasonable…, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and an absence of prejudice … .  Matter of Viola v Ronkonkoma Middle Sch, 2013 NY Slip Op 04819, 2nd Dept 6-26-13

 

 

 

FAMILY LAW

 

Criteria for Changing Custody Arrangement Entered Into by Agreement

 

In reversing Family Court’s denial of a modification of a custody arrangement, the Second Department explained the criteria for changing a custody arrangement entered into by agreement:

 

Where parents enter into an agreement concerning custody, that agreement will not be modified unless there is a sufficient change in circumstances since the time of when the agreement was entered into, and unless modification of the custody arrangement is in the best interests of the child…. "In order to determine whether modification of a custody arrangement is in the best interests of the child, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent's financial status, (8) his or her ability to provide for the child's emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the other parent"….  * * * Here, considering, inter alia, the acrimony between the parties, the Supreme Court's determination to award legal custody to the father and residential custody to the mother lacked a sound and substantial basis in the record …. McAvoy v Hannigan, 2013 NY Slip Op 04785, 2nd Dept 6-26-13

 

 

 

Derivative Severe Abuse Finding Reversed

 

In reversing Family Court’s finding of derivative severe abuse, the Third Department explained the proof requirements as follows:

 

…[W]e agree with respondent that Family Court erred in concluding  that Nicholas and  Carolina were derivatively severely abused by respondent. As the Court of Appeals recently clarified in Matter of Dashawn W. (21 NY3d 36 [2013]), a determination of severe abuse requires that the court find, by clear and convincing evidence, as relevant here, not only that "the child [is] an  abused  child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved  indifference to human  life, which  result in serious physical injury to the child as defined in [Penal Law  § 10.00 (10)]" (Social Services Law  §  384-b  [8] [a] [i]), but  also that petitioner "made  diligent efforts to encourage  and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and  such  efforts have been unsuccessful and are unlikely to be successful in the foreseeable future" (Social Services Law  §  384-b  [8] [a] [iv]). Here, inasmuch as Family Court did not make either of the foregoing determinations and the evidence in the record does not enable us to do so, a finding of severe abuse against respondent cannot be sustained.  Matter of Nicholas S…, 511568, 3rd Dept 6-27-13

 

 

Events Before Last Custody Order Could Be Considered re: “Best Interests of Child” Even Though Only Post-Custody-Order Events Can Be Considered re: “Change of Circumstances”

 

 

In upholding Family Court’s custody ruling, the Third Department noted that events which occurred before the last custody order could be considered with respect to the best interests of the child”

 

Family Court did not err in considering evidence of events that occurred before the entry of the prior custody order. Although  the inquiry as to whether  a substantial change  in circumstances has occurred should be limited to occurrences since the date of the prior custody order…, a best interests inquiry is broader and may include other facts that give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party's fitness as a parent….  As less weight  is afforded to a stipulated order, admission of evidence concerning previous behavior or events is especially proper where no prior plenary hearing has been held and the prior order was issued on consent…. Here, Family Court did not abuse  its broad  discretion in determining the scope of the proof….  Matter of James E…, 513811, 3rd Dept 6-27-13

 

 

Family Court Could Not Countermand County Court’s Order of Protection

 

The Third Department noted that Family Court can not countermand County Court’s order of protection stemming from the father’s assault of the mother.  Therefore, Family Court could not require the mother to facilitate the reading of the father’s letters to the child: 

 

Family Court does not have jurisdiction to countermand the provisions  of a  criminal court  order  of protection ….  Considering that "an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims"…, the criminal court order of protection would have to be modified, if deemed appropriate by County Court, before Family Court would be authorized to require the mother to accept, read or facilitate the reading of the father's communications to the child.  Matter of Samantha WW v Gerald XX, 513853, 3rd Dept 6-27-13

 

 

Family Court’s Finding Father in Default for Nonappearance Reversed

 

In reversing Family Court’s finding the father in default for nonappearance in a custody and visitation modification proceeding, the Third Department noted that the father’s counsel did not tell the father his appearance was required and the court made no attempt to reach the father by phone:

 

The nonappearance of a party does not necessarily result in a default, "particularly where counsel appears upon the absent party's behalf and offers an  explanation for his or her failure to attend".   The father's counsel stated that, while the father had elected not  to appear, counsel had  not  informed  him  that his appearance  was  necessary.  Family Court did not challenge the accuracy of that representation and, moreover, made no effort to reach the father telephonically or by other means.  Under these circumstances, Family Court erred in holding that the father's nonappearance constituted a default …  Matter of Freedman, 514882, 414883, 3rd Dept 6-27-13

 

 

Default Judgment against Mother for Failure to Appear Reversed

 

In vacating a default judgment entered against the mother who failed to appear in a custody and visitation proceeding, the Third Department noted that, in her motion to vacate, the mother offered a reasonable excuse for not appearing (car broke down), and the best interests of the child would be served by a plenary hearing:

 

"We must remain vigilant that the ultimate issue here is what is in [the children's] best interest[s], not whether [the mother] should be punished for her actions"….  Here, the lack of a full hearing to determine the best interests of the children, a determination in which Family Court "is bound to assess numerous  factors," constitutes a meritorious defense …. Accordingly, the default judgment entered against the mother must be vacated, and the matter remitted for further proceedings… .  Matter of Brown v Eley, 514981, 3rd Dept 6-27-13

 

 

Denial of Request to Take Child’s Testimony Outside Parents’ Presence Was Abuse of Discretion

 

The Third Department noted that it was an abuse of discretion to deny the request for a Lincoln hearing in a custody proceeding (allowing a child to testify outside the parties’ presence):

 

Although not an issue directly raised on appeal, the attorney for the child and the father both requested that Family Court hold a Lincoln hearing … rather than require the child to testify in open court.  Unfortunately, this request was denied and, after the mother refused to consent to the child testifying outside of the parties' presence, the child had to testify under oath in front of both parents. While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate…, it was clearly an abuse of discretion for the court to put the child in this awkward position… . We again emphasize that "'a child . . . should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them'" when explaining the reasons for his or her preference…. Given the circumstances of this case and the fact that – at her age [14]– her preference would  be  entitled to great weight, the record indicates that a Lincoln hearing would have limited the risk of harm and "would have been far more informative and worthwhile than . . . an examination of the child under oath in open court"… . Matter of Casarotti v Casarotti, 515270, 3rd Dept 6-27-13

 

 

Family Court Cannot Review Support Magistrate’s Order in Absence of Specific Objection

 

In reversing Family Court, the Third Department explained that Family Court does not have the authority to review those portions of a Support Magistrate’s order to which no specific objection his been made:

 

It is well established that "an order from a Support Magistrate is final and  Family Court's review under Family Ct Act § 439 (e) is tantamount to appellate review and requires  specific  objections  for  issues  to  be  preserved"  ….  Family Court therefore lacked the authority to review the  order  dismissing  the  mother's  first modification  petition,  to which no  objections had  been  filed… .  Matter of Hubbard v Barber. 514420, 3rd Dept 6-27-13

 

 

Absence of Complete Financial Disclosure Did Not Preclude Family Court from Making “Change-of-Circumstances” Determination

 

The Third Department affirmed Family Court’s modification of the father’s support obligation in the absence of complete financial disclosure because reliable financial evidence was in the record:

 

Although Family Court was entitled to deny the father's requested relief based upon  his failure to comply with Family Ct Act § 424–a, this Court has approved orders of support in the absence of complete financial disclosure where reliable evidence otherwise has appeared on  the face of the record…. Here,  the father's sworn statement of net worth and testimony, the latter of which was subject to examination by the Support Magistrate and cross-examination by the mother, was sufficient to demonstrate the requisite change in circumstances.  Matter of Mata v Nebesnik, 516104, 3rd Dept 6-27-13

 

 

Child Support Awarded to Wife Even though Husband Awarded Sole Custody/Residency Shared Equally/Husband Has Much Higher Income than Wife

 

In a full-fledged opinion by Justice Lindley, the Fourth Department determined child support should have been awarded to the wife (defendant), even though the husband had sole legal custody, because the residency of the children was shared equally and the wife’s income was less than the husband’s:

 

…[T]he court erred in awarding child support to plaintiff and that the court instead should have awarded child support to her. It is well settled that in shared residency arrangements, where neither parent has the children for a majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support….  Here, as noted, the residency schedule affords the parties equal time with the children, and thus neither party has the children for the majority of the time. Inasmuch as plaintiff’s income exceeds that of defendant — at the time of trial, plaintiff earned $134,924.48 annually, while the JHO imputed income of $25,000 to defendant, whose actual earnings were $14,109.53— plaintiff is the “noncustodial” parent and, as such, he must pay child support to defendant.

 

It is true, as plaintiff points out, that [the cited cases] involve awards of joint legal custody, whereas he was awarded sole legal custody; that fact, however, should not affect the child support determination.  Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children, and, here, plaintiff spends no more time with the children than does defendant.  We note, moreover, that there is already a significant disparity in the parties’ incomes, and an award of child support to plaintiff would only widen that gulf.  In our view, the children’s standard of living should not vary so drastically from one parent’s house to the other.

 

Thus, under the circumstances of this case — where plaintiff has sole legal custody, but the residency schedule affords the parents equal time with the children — an award of child support to defendant will best “assure that [the] children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household” … .  Leonard v Leonard, 402, 4th Dept 6-28-13 

 

 

Standing Requirements for Grandparent Seeking Visitation Explained

 

The Second Department explained the standing requirements for a grandparent seeking visitation with a grandchild:

 

In a grandparent visitation proceeding, "the burden of establishing standing lies with the grandparent and it is conferred by the court, in its discretion, only after it has examined all the relevant facts'"…. In determining whether grandparents have standing or a right to be heard on a petition for visitation with a grandchild, the essential components to the inquiry are the "nature and extent of the grandparent-grandchild relationship" … and "the nature and basis of the parents' objection to visitation" …. "The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances"…. A hearing to determine the issue of standing is not necessary where the submitted papers do not raise a triable issue of fact… .  Matter of Bender v Cendali, 2013 NY Slip Op 04796, 2nd Dept 6-26-13

 

 

Criteria for Derivative Neglect Finding Explained (Evidence Insufficient)

 

The Second Department, in reversing Family Court’s finding, explained the criteria for a finding of derivative neglect:

 

…[A] finding of sexual abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected …. The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood …. Here, a derivative finding of neglect as to the child Brandon J. was warranted since the abuse was perpetrated while he was in the home…. However, given the limited duration and nature of the sexual abuse, as well as the remoteness in time between when Monica C. M. was abused and when Joshua A., the appellant's biological son, was born more than four years later, there was insufficient evidence to support the Family Court's determination that Arnold A. derivatively neglected Joshua A…..  Matter of Monica CM, 2013 NY Slip Op 04808, 2nd Dept 6-26-13

 

 

Neglect Proceeding “Adjourned in Contemplation of Dismissal” Properly Considered and Findings of Forensic Psychologist Properly Ignored in Modification of Custody Proceeding

 

In affirming Family Court’s modification of custody, the Second Department noted that Family Court properly considered a neglect proceeding that was adjourned in contemplation of dismissal (not a determination on the merits) and Family Court was not required to accept the recommendations of the court-appointed forensic psychologist.  Matter of Selliah v Penamente, 2013 NY Slip Op 04815, 2nd Dept 6-26-13

 

 

Default Finding Should Not Have Been Made Where Attorney Appeared and Asked for Adjournment

 

In reversing the order of Family Court, the Fourth Department determined the Support Magistrate should not have ruled respondent had defaulted (respondent’s attorney appeared and requested an adjournment) and the colloquy between petitioner and the Support Magistrate was not a sufficient basis for a factual finding respondent had willfully violated a support order.  Family Court, therefore, should not have confirmed the Support Magistrate’s order.  Matter of Manning v Sobotka, 739, 4th Dept 6-28-13