EDUCATION-SCHOOL LAW (TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE)/EMPLOYMENT LAW (EDCUATION-SCHOOL LAW, TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE)/MUNICIPAL LAW (EDCUATION-SCHOOL LAW, TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE)

EDUCATION-SCHOOL LAW, EMPLOYMENT LAW, MUNICIPAL LAW.

TERMINATION OF TEACHER BASED ON HER SUBMISSION OF INACCURATE TIME SHEETS, UNDER THE CIRCUMSTANCES, SHOCKS THE CONSCIENCE.

The First Department, over a two-justice dissent, determined the termination of a teacher for submitting inaccurate time sheets was not warranted. The teacher had an unblemished record and the misconduct was precipitated by Hurricane Sandy, which flooded her home and the home of her disabled student:

Petitioner filled out the time sheets in question in advance of the dates to which those time sheets pertained. Although she did not, in fact, proceed to provide instruction to the disabled student on the days set forth in those time sheets, she submitted the time sheets without correction on a subsequent date. Because petitioner instructed other students on each of the dates in question, she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no benefit from her actions. Petitioner's misconduct is more a matter of lax bookkeeping than implementation of any venal scheme. There was no scheme to defraud or theft of services on petitioner's part, and the harm to the public and to the DOE was mitigated. * * *

At the hearing, petitioner admitted that she was guilty of submitting reports stating that she had provided instruction to the disabled student on certain dates when she had not done so and that she had reported to various schools and libraries on certain dates when she had not done so. As petitioner acknowledges, her misconduct warrants punishment, since the disabled student was deprived of the services of a teacher for two months. Petitioner does not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her. She has acknowledged her error in judgment and has pledged to change her practices and never to repeat the error. There is no evidence that "petitioner could not remedy her behavior" ... . Matter of Beatty v City of New York, 2017 NY Slip Op 01628, 1st Dept 3-2-17

FAMILY LAW (NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER'S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)/NEGLECT (NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER'S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)/MENTAL ILLNESS (FAMILY LAW, NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER'S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)

FAMILY LAW.

ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER'S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING.

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion, determined Family Court properly found mother had neglected her child. The child was not harmed by the mother. There was evidence the mother suffered from delusions:

A neglected child is one whose "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care" ... . It is well settled that "[a] respondent's mental condition may form the basis of a finding of neglect if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child[]" ... .

In this case, the mother presented a risk of harm to her child through her unfounded fears that her daughter had been raped, since these fears resulted in the mother on different occasions "testing" the child to see if she was raped, by checking her diaper and by sticking a Q-tip inside her, and making an unnecessary trip to the hospital ... .

Further, the mother displayed a "lack of insight" into her illness by refusing to agree that she had any mental health condition, despite her diagnoses, and by repeatedly refusing to comply with her medication regimen ... .

Significantly, lack of evidence as to actual injury to the child is inconsequential. "A showing that [the child was] impaired by [the mother's] failure to exercise a minimum degree of care is not required for an adjudication of neglect; it is sufficient that [the child was] in imminent danger of becoming impaired'" ... .Indeed, the imminent danger standard exists specifically to protect children who have not yet been harmed and to prevent impairment ... .

With regard to mental illness, we have previously found that a parent suffering from untreated paranoid delusions presents an imminent risk of harm to children who are placed in her care ... . * * *

The neglect finding was not based only on the mother's mental illness. Rather, it was based on her mental condition in conjunction with her failure to comply with her medication regimen and follow-up treatment, and the fact that her mental illness impaired her ability to care for her infant daughter, and caused her to keep unnecessarily checking her daughter for evidence of rape. Matter of Ruth Joanna O.O. (Melissa O.), 2017 NY Slip Op 01524, 1st Dept 2-28-17

FAMILY LAW (VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/ORDER OF PROTECTION (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/APPEALS (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)

FAMILY LAW, APPEALS.

VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION; EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT.

The First Department, over an extensive dissent, determined Family Court properly issued a final order of protection after respondent's violation of a temporary order of protection. The court noted that the expiration of the order of protection did not render the appeal moot because the order "still imposes significant enduring consequences upon respondent...". The dissent argued that a final order of protection cannot be issued unless a family offense has been committed:

Here, the Family Court found, on the record after a hearing, that respondent had willfully violated the temporary order of protection with his April 3, 2014 emails containing statements clearly intended to harass petitioner. As a result of this determination, the Family Court conducted a dispositional hearing on respondent's violation of the temporary order of protection, and thereafter issued a new order of protection. The Family Court adhered to the prescribed procedure and did not exceed its jurisdiction by issuing this final order of protection. * * * ... [W]e read Family Court Act § 846-a as prescribing the remedies available to the court when a respondent violates a temporary order of protection, which is what is at issue here. Matter of Lisa T. v King E.T., 2017 NY Slip Op 01487, 1st Dept 2-28-17

FAMILY LAW (ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE)/EVIDENCE (FAMILY LAW, ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE)/HEARSAY (ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE)

FAMILY LAW, EVIDENCE.

ALTHOUGH NONE OF THE THREE CHILDREN TESTIFIED IN THIS NEGLECT CASE, THE STATEMENTS ATTRIBUTED TO THEM CROSS-CORROBORATED ONE ANOTHER AND WERE THEREFORE ADMISSIBLE.

The Third Department determined that, although none of the three children testified in this child neglect case, the children's statements about the domestic violence witnessed by them were admissible because the statements were cross-corroborated:

"While the mere repetition of an accusation by a child is insufficient to corroborate the child's prior account of abuse or neglect" ... , "independent statements by children requiring corroboration may corroborate each other" ... . * * *

... [W]e find that, although none of the children testified, their out-of-court statements sufficiently cross-corroborated one another ... . Matter of Annarae I. (Jennifer K.), 2017 NY Slip Op 01605, 3rd Dept 3-2-17

FORECLOSURE (LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)/CIVIL PROCEDURE (FORECLOSURE, LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)

FORECLOSURE, CIVIL PROCEDURE.

LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTIONED.

The Second Department determined plaintiff-lender did not negotiate a mortgage modification in good faith and was properly sanctioned by the tolling of interest, costs and attorney's fees accrued during the four years of negotiations:

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution ... . "The purpose of the good faith requirement . . . is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution" ... . Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party's conduct demonstrates a meaningful effort at reaching a resolution ... .

Here, the totality of the circumstances supports the finding that the plaintiff failed to negotiate in good faith. The hearing evidence demonstrated that the plaintiff, among other things, engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided ... . Aurora Loan Servs., LLC v Diakite, 2017 NY Slip Op 01528, 2nd Dept 3-1-17

NEGLIGENCE (PLAINTIFF'S ALLEGATION SHE SAW A DENT IN A WAXY SUBSTANCE MADE BY HER SHOE AS SHE FELL WAS SUFFICIENT TO DEFEAT DEFENDANT'S SUMMARY JUDGMENT MOTION, SUPREME COURT REVERSED)/SLIP AND FALL (PLAINTIFF'S ALLEGATION SHE SAW A DENT IN A WAXY SUBSTANCE MADE BY HER SHOE AS SHE FELL WAS SUFFICIENT TO DEFEAT DEFENDANT'S SUMMARY JUDGMENT MOTION, SUPREME COURT REVERSED)

NEGLIGENCE.

PLAINTIFF'S ALLEGATION SHE SAW A DENT IN A WAXY SUBSTANCE MADE BY HER SHOE AS SHE FELL WAS SUFFICIENT TO DEFEAT DEFENDANT'S SUMMARY JUDGMENT MOTION, SUPREME COURT REVERSED.

The First Department, reversing Supreme Court, over a two-justice dissent, determined defendant should not have been granted summary judgment in this slip and fall case. Plaintiff alleged she slipped on a waxy substance on a marble floor and alleged she saw a "dent" in the substance made by her shoe when she fell. Defendant submitted evidence that the floor was never waxed:

Here, there is a triable issue of fact as to whether there was a slippery substance on the bathroom floor that caused plaintiff to fall notwithstanding defendant's assertion that it never used wax in that particular bathroom. Contrary to the motion court's findings, plaintiff's proof was not speculative and was sufficient to defeat the motion, because she set forth a specific reason for the slippery condition on the floor, namely a build-up of wax ... . Indeed, as noted above, she "saw a big line, the dent of my shoe in the wax all the way that I fell," suggesting that her shoe gouged out some of the waxy substance where she fell. This was more than just leaving a streak ... , which would happen regardless of the condition of the floor. Villa v Property Resources Corp. (137 AD3d 454 [1st Dept 2016]), recently decided by this Court, is also not dispositive. There, plaintiff merely felt a wetness on her pants and hands that smelled like wax or ammonia, while here, plaintiff saw the dent of her shoe in the waxy substance ... . De Paris v Women's Natl. Republican Club, Inc., 2017 NY Slip Op 01625, 1st Dept 3-2-17

NEGLIGENCE (MEDICAL MALPRACTICE, CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)/MEDICAL MALPRACTICE (CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)/CERTIFICATE OF MERIT (MEDICAL MALPRACTICE, CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)

NEGLIGENCE, MEDICAL MALPRACTICE.

CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED.

The Third Department determined the certificate of merit filed in this medical malpractice action was inadequate. The complaint alleged malpractice by a surgeon. The certificate was based on the affidavit of plaintiff's (Calcagno's) physical therapist:

A certificate of merit "merely ensures that counsel has satisfied himself or herself that there is a reasonable basis for the commencement of an action" ... . The statute requires counsel to submit a certificate of merit declaring that he or she has consulted with at least one licensed physician who is knowledgeable regarding the relevant issues in the action, has reviewed the facts of the case, and has thus concluded that such a reasonable basis exists ... .

We agree with Supreme Court that the certificate proffered by plaintiffs is inadequate. The allegations of malpractice arise from defendants' diagnosis and surgical treatment, and the certificate of merit is based upon an affidavit of Calcagno's physical therapist, who opined, "as a physical therapist," that defendants' actions were "departures from good and accepted medical practice." However, by definition, a physical therapist cannot diagnose and is incompetent to attest to the standard of care applicable to physicians and surgeons ... . Moreover, we find no merit in plaintiffs' contention that the certificate of merit should be deemed adequate, as it was also based on certain medical reports, Calcagno's testimony, and the pleadings. Review of these documents, standing alone, cannot suffice. Expert analysis is required to establish whether there was any departure from established standards of care, and whether any such departure was the proximate cause of injury to Calcagno ... . Calcagno v Orthopedic Assoc. of Dutchess County, PC, 2017 NY Slip Op 01616, 3rd Dept 3-2-17

NEGLIGENCE (COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)/BUSES (SLIP AND FALL, COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)/SLIP AND FALL (BUSES, COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM)

NEGLIGENCE, MUNICIPAL LAW.

COMMON CARRIERS DO NOT HAVE A DUTY TO KEEP BUS STEPS FREE OF SNOW TRACKED IN DUE TO A RECENT STORM.

The First Department, reversing Supreme Court, determined defendant transit authority's motion for summary judgment should have been granted. Plaintiff slipped on snow on a step as she got off a bus:

Plaintiff testified that she slipped and fell as she was exiting a bus owned and operated by defendants because the step was covered with a slushy condition. She and the bus driver both stated that there was snow all over the ground from a storm that had ended earlier that day, and certified meteorological records submitted by defendants demonstrated that a snow storm that started the previous night and ended earlier in the day of the accident had left about six inches of snow on the ground. The bus driver also testified that passengers tracked snow onto the bus on their shoes and boots as they boarded.

Common carriers are not obligated to provide a "constant remedy" for the tracking of water onto a bus during an ongoing storm or for a reasonable time thereafter ... . Similarly, when the ground is covered with snow left by a recent storm, "it would be unreasonable to expect the [defendants] to constantly clean the front steps of the subject bus" ... . Plaintiff's argument that defendants failed to show lack of notice of the slushy condition is irrelevant, since they did not breach any duty of care under the existing weather conditions. Harbison v New York City Tr. Auth., 2017 NY Slip Op 01503, 1st Dept 2-28-17

NEGLIGENCE (LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED)/TOXIC TORTS (LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED/LEAD POISONING (STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED)

NEGLIGENCE, TOXIC TORTS.

LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED.

The Third Department determined an action by a 28-year-old woman alleging lead paint poisoning was time-barred. Plaintiff was first diagnosed with high levels of lead in 1990. The statute of limitations runs from when the symptoms are first discovered, not when the cause of the symptoms is learned:

... [D]efendants' submissions were sufficient to demonstrate that plaintiff was cognizant of her claimed injuries, or, at a minimum, reasonably should have been, such that the action is barred by the statute of limitations. Although CPLR 214-c (2) permits an action to proceed within three years from the "discovery of the injury," this means the "discover[y of] the primary condition on which the claim is based" ... , or, put differently, "the discovery of the manifestations or symptoms of the latent disease that the harmful substance produced" ... . Here, accepting that lead was the causative harmful substance, plaintiff was aware of her injuries, which first manifested when she started public education in 1990 and, according to plaintiff, continued throughout her school years. Although plaintiff argues that her action is timely because she first discovered that she suffered lead poisoning when her attorney sent a solicitation letter to her mother in 2012, we disagree. Where, as here, a plaintiff is seeking the benefit of the discovery rule applicable to toxic torts, the statute runs from the date the condition or symptom is discovered or reasonably should have been discovered, not the discovery of the specific cause of the condition or symptom ... . Vasilatos v Dzamba, 2017 NY Slip Op 01615, 3rd Dept 3-2-17

PRODUCTS LIABILITY (PLAINTIFF'S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT'S PRODUCTS)/TOXIC TORTS (ASBESTOS, PLAINTIFF'S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT'S PRODUCTS)/ASBESTOS (PLAINTIFF'S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT'S PRODUCTS)/EXPERT OPINION (PLAINTIFF'S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT'S PRODUCTS)

PRODUCTS LIABILITY, TOXIC TORTS.

PLAINTIFF'S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS EMANATING FROM DEFENDANT'S PRODUCTS.

The First Department, in a full-fledged opinion by Justice Saxe, over a two-justice dissenting opinion, determined the plaintiff's verdict in this asbestos/mesothelioma case was properly set aside by the trial court. The First Department held the plaintiff's experts did not present sufficient proof plaintiff's decedent was exposed to dangerous levels of asbestos emanating from defendant's products while working as an auto mechanic:

... [T]he fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant's products to have caused his disease ... . Even if it is not possible to quantify a plaintiff's exposure, causation from exposure to toxins in a defendant's product must be established through some scientific method, such as mathematical modeling based on a plaintiff's work history, or comparing the plaintiff's exposure with that of subjects of reported studies ... .

The evidence presented by plaintiff here was insufficient because it failed to establish that the decedent's mesothelioma was a result of his exposure to a sufficient quantity of asbestos in friction products sold or distributed by defendant Ford Motor Company. Plaintiff's experts effectively testified only in terms of an increased risk and association between asbestos and mesothelioma ... , but failed to either quantify the decedent's exposure levels or otherwise provide any scientific expression of his exposure level with respect to Ford's products ... . Matter of New York City Asbestos Litig., 2017 NY Slip Op 01523, 1st Dept 2-28-17