JUST RELEASED

January Page II

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)

 

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ATTORNEYS

 

Plaintiff Not Entitled to Disqualification of a Defendant's Law Firm---Relevant Communication Did Not Have the Potential to Be Significantly Harmful to Plaintiff---Information Was Generally Known

 

The First Department, in a full-fledged opinion by Justice Saxe, reversed Supreme Court finding that a communication between plaintiff and an attorney in a law firm representing a defendant did not require disqualification of the firm.  The contents of the communication did not have the potential to be significantly harmful to plaintiff because the relevant information was generally known:

 

A movant seeking disqualification of an opponent's counsel bears a heavy burden ... . A party has a right to be represented by counsel of its choice, and any restrictions on that right "must be carefully scrutinized" ... . This right is to be balanced against a potential client's right to have confidential disclosures made to a prospective attorney subject to the protections afforded by an attorney's fiduciary obligation to keep confidential information secret (see New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18...). Courts should also examine whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation ... . The decision of whether to grant a motion to disqualify rests in the discretion of the motion court ... .

 

Issues relating to the prospective client relationship based on events that occurred after April 2009 are governed by Rule 1.18 of the Rules of Professional Conduct (22 NYCRR 1200.0), rather than the repealed DR 5-108 (22 NYCRR 1200.27). ...

 

The former Code of Professional Responsibility did not have a specific rule that governed disclosures during a prospective client consultation. Rule 1.18 of the Rules of Professional Conduct fills that void. It provides:

 

"(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.'

"(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

"(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d)" ... .

 

Thus, where a prospective client consults an attorney who ultimately represents a party adverse to the prospective client in matters that are substantially related to the consultation, the prospective client is entitled to obtain the attorney's disqualification only if it is shown that the information related in the consultation "could be significantly harmful" to him or her in the same or substantially related matter (...Rule 1.18[c]).  Mayers v Stone Castle Partners LLC, 2015 NY Slip Op 00295, 1st Dept 1-8-15

 

 

CRIMINAL LAW/EVIDENCE

 

Reversible Error to Allow Cross-Examination of Defendant About an Unrelated Prior Crime

 

The Third Department determined it was reversible error to allow the defendant, who was convicted of manslaughter, to be cross-examination about a unrelated prior crime involving an altercation and violence.  The evidence was not relevant to credibility and served only to demonstrate a propensity to instigate fights:

 

The People sought the court's permission to cross-examine defendant about a previous guilty plea to a charge of harassment in the second degree based upon defendant's physical altercation with another woman, maintaining that such questioning would be useful to, among other things, impeach defendant's credibility. Despite defendant's objection that such line of questioning would have no probative value, the court allowed the proposed cross-examination, stating that such evidence of defendant's previous assault was "relevant" to "show that [defendant] can be physically aggressive" and, additionally, that such proof would speak to defendant's anticipated testimony that she had acted in self-defense. The court went on to indicate that the admission of such evidence would not unduly prejudice defendant inasmuch as the prior incident did not involve a weapon or result in serious physical injury.

 

Based upon County Court's authorization, the People cross-examined defendant at trial about the previous altercation, suggesting that defendant had instigated the fight and, further, emphasizing that defendant punched the woman with a closed fist, causing her to lose a tooth. Moments later, the People resumed its questioning about the altercation with the victim, asking defendant whether she baited the victim to come up to her apartment knowing that she would use a knife in a fight with the victim. As the questions regarding defendant's prior assault bore no relation to defendant's credibility, but rather served solely to illustrate defendant's propensity to initiate fights so that she could physically attack other people, we find that County Court abused its discretion in allowing such inquiries ... . Accordingly, as defendant's guilt was not overwhelmingly established by the proof presented at trial and we "cannot say that there is no reasonable possibility that the error might have contributed to defendant's conviction," the judgment must be reversed and the matter remitted for a new trial ... . People v Karuzas, 2015 NY Slip Op 00252, 3rd Dept 1-8-15

 

 

CRIMINAL LAW/ATTORNEYS

 

Right to Counsel Not Invoked by Defendant's Telling Police He Wanted to Speak to his Attorney Before He Signed Anything; Spontaneous Statements Made After Right to Counsel Attached Not Suppressible; Non-Communicative Parts of Video Not Suppressible; Limited Right to Counsel Re: Deciding to Submit to Chemical Test Not Invoked

 

 

The Third Department, in reversing (in part) County Court's suppression of videotaped statements made by the defendant after a DWI arrest, dealt in some depth with several issues:  (1) the court noted that, although a defendant seeking a suppression hearing must make sworn factual allegations supporting the motion, CPL [Criminal Procedure Law] 710.60 "does not mandate summary denial of defendant's motion even if the factual allegations are deficient" and the hearing was properly granted in this case under "principles of judicial economy;" (2) the defendant did not invoke his right to counsel by telling the police he wanted to speak to his attorney before he signed anything; (3) the defendant did invoke his right to counsel when he subsequently asked that he be allowed to call his attorney; (3) defendant's spontaneous statements, even those made after right to counsel attached, were not suppressible; (4) defendant's responses to questions about the chemical test and where he last had a drink were suppressible; (5) the portions of the videotape that did not contain any communication were not suppressible; and (6) although a defendant has a limited right to counsel for the purpose of deciding whether to submit to a chemical test, the defendant did not exercise that right before refusing the test. With regard to spontaneous statements and the "non-communicative" portions of the video, the court wrote:

 

With a few exceptions, the video reveals that defendant's statements in the period preceding the reading of his Miranda rights were made without any triggering words or conduct by the police. As the officers played no role in soliciting them, these statements constitute spontaneous declarations and should not have been subject to suppression ... . However, at three points following defendant's successful invocation of his right to counsel, officers asked him questions that should reasonably have been anticipated to elicit responses. The first such exchange occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant responded after an officer asked him what he thought would occur as a result of refusing a chemical test. The second occurred between 03:50:01 a.m. and 03:50:09 a.m., when defendant confirmed his last drinking location in response to a question by one of the officers. The third occurred between 04:01:05 a.m. and 04:06:23 a.m., when an officer asked defendant several questions about chemical testing and the events of the evening. Defendant's responses to these inquiries cannot be said to be spontaneous. Thus, his statements during these three time periods and the corresponding portions of the video were properly suppressed.

 

As to portions of the video in which defendant was not speaking, evidence obtained from a defendant following invocation of the right to counsel is subject to suppression where it constitutes "a communicative act that disclose[s] the contents of defendant's mind" ... . Generally, a defendant's physical characteristics and appearance are not considered to be communicative in nature ... . Here, portions of the video in which defendant is silent show only his physical condition and appearance and do not disclose any communicative statements made after he had invoked his right to counsel. Whether any of these video segments may ultimately be deemed admissible at trial depends on other considerations not presented here, but there is no basis for their suppression as communicative statements ... . People v Higgins, 2014 NY Slip Op 00253, 3rd Dept 1-8-15

 

 

CRIMINAL LAW/ATTORNEYS

 

Jury Should Not Have Been Allowed to Hear Defendant's Refusal to Waive His Right to Remain Silent and His Invocation of His Right to Counsel

 

The Third Department determined defendant was entitled to a new trial because the jury was allowed to hear a recording in which defendant refused to waive his right to remain silent and invoked his right to counsel. Under the facts, the error was not harmless. The Third Department directed that the portion of the recording which recounts defendant's criminal history be redacted on retrial:

 

....[D]efendant is entitled to a new trial. During their case-in-chief, the People generally cannot introduce evidence that a defendant invoked his or her constitutional right to remain silent or to obtain counsel ... . At the trial here, the People played the recording of the police interview up to and including the portion in which defendant stated that he would not sign the line of the Miranda form indicating his willingness to speak to the detective, and defendant stated, "Let me have a lawyer." This was improper because "it creates a prejudicial inference of consciousness of guilt" by letting the jury hear defendant invoke his constitutional rights ... . People v Carey, 2015 NY Slip Op 00251, 3rd Dept 1-8-15

 

 FAMILY LAW

 

Petitions to Relocate Are Not Subject to a "Change in Circumstances" Analysis But Rather a "Best Interests of the Child Analysis;" the "Lincoln" Hearing Was Improperly Held In the Presence of Parents' Counsel and the Transcribed Proceedings Were Improperly Left Unsealed and Included in the Record on Appeal; An Article 10 Hearing, Where Counsel for the Parents Are Allowed to Be Present, Should Not Be Confused with an Article 6 Hearing, Where They Are Not

 

In affirming Family Court's denial of mother's petition to relocate, the Third Department noted that Family Court wrongly used "change in circumstances" as the criteria for analyzing the petition when it should have used "the best interests of the child" as the sole criterium.  The Third Department exercised its power to make its own factual analysis.  The court further noted that the Lincoln hearing in which the children testified was improperly conducted because counsel for mother and father were present and the transcribed proceedings were not sealed.  The court explained that the procedure used for Article 10 hearings, where counsel for the parties are present, should not be confused with the procedure for Article 6 hearings, where confidentiality is paramount:

 

As the mother contends, Family Court applied the incorrect standard in dismissing the relocation petition on the ground that the mother had failed to show a sufficient change in circumstances to warrant modification. No change in circumstances must be established to support a relocation petition, as the planned move itself is accepted as such ... . Instead, the parent who wishes to relocate bears the burden of establishing that the proposed move is in the best interests of the children, a determination based upon such factors as the parents' reasons for seeking or opposing relocation, the quality of the children's relationships with each parent, the feasibility of developing a visitation schedule that will permit the children to retain meaningful relationships with the parent who does not move, the degree to which the move may offer economic, emotional and educational benefits for the relocating parent and the children, and the effect of the relocation on extended family relationships ... . Although that analysis was not conducted here, this Court's authority is as broad as that of Family Court, and the record is sufficiently complete to permit us to make the relocation determination based upon our independent review ... . * * *

 

...[W]e note that Family Court conducted what was described as a "modified" Lincoln hearing, in which counsel for both parents were permitted to be present during the court's interview with the children. The transcript of the interview was not sealed, and was included in full in the appellate record. Neither the presence of counsel other than the attorney for the children during the interview nor the failure to seal the transcript was proper. We reiterate that the right to confidentiality during a Lincoln hearing belongs to the child and is superior to the rights or preferences of the parents ... . A child who is explaining the reasons for his or her preference in custody or visitation proceedings "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 or be required to openly choose between them" ... . We address this issue recognizing that, in the course of practice, confusion may have resulted from the different procedure followed during Family Ct Act article 10 proceedings, in which the presence of the parties' counsel during an in camera interview with a child may be permissible due to the fundamental right of litigants in such proceedings to confront their accusers. Although these interviews have sometimes been inaccurately referred to as Lincoln hearings, they are conducted for entirely different purposes than the confidential interviews conducted during custody and visitation proceedings ... . For the court to fulfill its primary responsibility of protecting the welfare and interests of a child in the context of a Family Ct Act article 6 proceeding, protecting the child's right to confidentiality remains a paramount obligation ... . Matter of Julie E v David E, 2015 NY Slip OP 00254, 3rd Dept 1-8-15

 

 

FAMILY LAW

Even Though Husband's Funds Were Deposited in a Joint Account, the Portion of those Funds Used for a Down-Payment on the Marital Residence Was Properly Deemed Husband's Separate Property; Supreme Court Abused Its Discretion In Ordering the Sale of the Marital Residence---Wife Entitled to Exclusive Possession Until Child Turns 18

 

The Third Department determined that the husband's separate property, which had been deposited in a joint account before a portion of it  was used for a down-payment on the marital residence, was properly deemed the husband's separate property to the extent it was used for the down-payment. The Third Department further determined Supreme Court had abused its discretion in ordering the marital residence sold. Under the facts, the mother was entitled to exclusive possession until the child turns 18:

 

Supreme Court erred in directing that the marital residence be listed for sale. Our case law reflects "'a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds'" ... . Proof at trial established that the parties' young children reside with the wife in the marital residence and, although she has the means to pay the mortgage, she is unable to refinance or purchase another residence. No evidence was adduced that the wife could obtain comparable housing at a lower cost or that either party is in immediate need to recoup their equitable share of the marital residence. Under these circumstances, we find that Supreme Court abused its discretion in directing that the marital residence should be listed for sale. Accordingly, the wife is entitled to exclusive possession of the residence until the youngest child reaches the age of 18 ... . Albertalli v Albertalli, 2015 NY Slip OP 00257, 3rd Dept 1-8-15

 

 

 

FAMILY LAW.

Mother's Violations of Conditions of a Suspended Judgment, Under the Facts, Justified Termination of Parental Rights (Against the Wishes of the Child)

 

The Third Department determined Family Court, under the facts, properly terminated petitioner's parental rights because of petitioner's failure to comply with the conditions of a suspended judgment (against the express wishes of the child):

 

It is well settled that a suspended judgment gives a parent who is found to have neglected his or her child "a brief grace period within which to become a fit parent with whom the child can be safely reunited" ... . Where, as here, it is established by a preponderance of the evidence that the parent has failed to comply with the terms and conditions of a suspended judgment, such judgment may be revoked and parental rights may be terminated ... . Furthermore, "petitioner is not obligated to wait until the end of the period of suspended judgment to seek to revoke the suspended judgment" where the parent has repeatedly violated the judgment's terms and conditions ... . * * *

 

Although respondent's breach of the express conditions of the suspended judgment "'does not compel the termination of [his] parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the child[]'" ... . The child's foster mother averred that he struggled emotionally when respondent's visitation became inconsistent and that, despite being asked to become involved in the child's athletic activities, respondent has failed to attend any games or practices. The child's placement in his foster home has given him a safe, stable and caring environment in which he has bonded with his foster parents and siblings. Family Court, although obviously disheartened in resolving the instant petition contrary to the child's express wishes, ultimately determined that his best interests would be served by terminating respondent's parental rights and clearing the way for him to be permanently placed with the foster family. Inasmuch as Family Court's determination has a sound and substantial basis in the record, it shall remain undisturbed ... . Matter of Michael HH, 2015 NY Slip Op 00258, 1-8-15

 

 

FAMILY LAW.

 

Relationship Between Mother and Father Had Not Deteriorated to the Extent that the Joint Custody Arrangement Should Have Been Modified to Award Sole Custody to Mother

 

The Third Department reversed Family Court's award of sole custody to the mother in a modification proceeding:

 

"A parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since the entry of the prior order to warrant modification thereof in the child[]'s best interests" ... . Although the requisite change in circumstances may be found to exist where "the parties' relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the child" ..., the record before us falls short of establishing that the mother and father's relationship has become so acrimonious as to preclude an award of joint custody. * * *

 

...[W]e note that the father's stated basis for seeking sole custody stemmed not from an expressed or demonstrated inability to get along with the mother but, rather, from his concerns regarding the mother's stability in light of her documented — and undisputed — mental health and alcohol dependency issues. Similarly, although the mother — both in the context of her modification petition and during the course of her testimony at the hearing — requested that Family Court alter the physical custody arrangement, she did not ask that Family Court award her sole custody of the child ... . Under these circumstances, and inasmuch as the parties otherwise failed to demonstrate a sufficient change in circumstances to warrant modification of the prior custody order, Family Court erred in awarding sole legal and physical custody to the mother ... . Matter of Dornburgh v Yearry, 2015 NY Slip OP 00260, 3rd Dept 1-8-15

 

 

FAMILY LAW.

Property Purchased by Husband Upon Which a "Shell" of a House Was Constructed Prior to Marriage Should Not Have Been Deemed Marital Property/Husband's Failure to Affirmatively Prove What Portion of His Savings Account Was Separate Property Justified Dividing It Equally/Wife's Failure to Prove How She Contributed to the Appreciation of the Marital Residence Precluded the Award of Any Appreciation in Value to Her

 

The Third Department determined Supreme Court was correct in some instances but erred in other instances in its findings re: separate and marital property. The marital residence was not subject to equitable distribution because the husband purchased the land and erected a "shell" of a house prior to marriage. The property cannot thereafter be transformed into marital property by virtue of the improvements made to it.  The decision is notable for pointing out the results of failures of proof.  The husband failed to prove what portion of his savings plan was separate property, so the court correctly divided it equally.  The wife failed to prove what portion of the improvements to the husband's separate property (their residence) was attributable to her, she therefore was not entitled to any portion of the property's appreciation in value:

 

... [T]he husband's Thrift Savings Plan ... was established prior to the marriage and remains in the husband's name. The uncontroverted proof demonstrated that contributions were also made to the plan during the marriage, so at least a portion of the plan constituted marital property. The husband did not offer any proof at trial regarding the value of the separate portion of the plan but, rather, merely indicated that the wife was ineligible to receive any portion of the plan because she had allegedly abandoned him. Inasmuch as the proof was insufficient to enable Supreme Court to determine which portion of the plan was separate and which was marital, the court was entitled to equitably distribute the entirety of the plan ... . 

 

...Supreme Court failed to properly consider what part, if any, of his pension was separate property. The record establishes the husband's starting and ending dates of employment with the United State Postal Service and the date of the parties' marriage, thereby allowing the court to determine which portion of the pension — a defined benefit plan — was earned prior to the marriage and is, therefore, the husband's separate property ... . Accordingly, we remit the matter to Supreme Court for a determination of the percentage of the pension that is marital property and, thus, may be equitably distributed... .

 

Supreme Court erred in finding that the marital residence was marital property and awarding the wife 50% of the home's appraised value minus a $10,000 separate property credit to the husband for the purchase price of the land. Supreme Court credited the wife's testimony that, although the husband purchased the land and constructed a "shell" of a house prior to the marriage, the construction of the residence was not complete until approximately four years after the marriage. The record demonstrates that the vast majority of the improvements occurred during the marriage due, in part, to the wife's contributions of money, time and labor. Nevertheless, for the reasons set forth in Ceravolo v DeSantis (___ AD3d ___, ____ [decided herewith]), a parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse. Accordingly, the parcel was separate property (see Domestic Relations Law § 236 [B] [1] [d] [1]), which is not subject to equitable distribution ... . 

 

Appreciation in value of separate property, from the date of the marriage to the date of commencement of the divorce action, can be considered a marital asset subject to equitable distribution "if the appreciation is due to the contributions or efforts of the nontitled spouse" ... . The wife, as the nontitled spouse here, bore the burden of proving that any increase in value of the husband's separate property was at least partially due to her efforts ... . The value of the parcel when the husband purchased it is irrelevant, considering that the parcel was vacant at that time but had the outer structure of a house before the marriage. Additionally, the property's value could have increased due to market forces between the dates of purchase and marriage. Simply crediting the husband for the purchase price and dividing the remainder of the property's value between the parties would improperly give the wife half of the value of the appreciation between the dates of purchase and marriage, despite that portion of the appreciation being separate property (see Domestic Relations Law § 236 [B] [1] [d] [3]). Although the wife could have been entitled to equitable distribution of a portion of the residence's appreciation in value for her contributions of time, money and labor toward improving the property, she did not meet her burden by proving the real property's increase in value, as she did not submit proof of the property's value on the date of the marriage to compare it to the value at the time of commencement of this action ... . Macaluso v Macaluso, 2015 NY Slip Op 00265, 3rd Dept 1-8-15

 

 

FAMILY LAW.

 

Real Property Purchased by Husband Prior to the Marriage Cannot Be Transformed Into Marital Property, Despite's Wife's Contribution of Her Own Funds ($30,000) to the Purchase/Wife Entitled to Equitable Distribution of the Appreciation of the Property After Marriage But No Proof On that Topic Was Offered Here/Wife Entitled to Recoup Mortgage Payments Made by Her

 

The Third Department, in a full-fledged opinion by Justice Stein, over a dissent, determined that real property purchased prior to marriage cannot be transformed into marital property by contributions made by the non-titled spouse, although the appreciation in value of the property attributable to the efforts of the non-titled spouse could be the subject of equitable distribution (there was a failure of proof on that issue here), and funds paid toward the mortgage by the non-titled spouse could be recouped:

 

"'[W]hether a particular asset is marital or separate property is a question of law'" ... . Marital property is defined as "all property acquired by either or both spouses during the marriage" (Domestic Relations Law § 236 [B] [1] [c] [emphasis added]), while "property acquired before marriage" is separate property (Domestic Relations Law § 236 [B] [1] [d] [1] [emphasis added]). Here, the husband purchased the marital residence in January 1994 — 2½ years prior to the parties' marriage — paying $130,000 of his own funds and borrowing an additional $100,000 from his father, secured by a note and mortgage. Although the wife contributed $30,000 of her separate funds to the initial purchase of the residence, she did not attend the closing and the husband took title to the property in his name alone. The record reflects that the wife thereafter paid the mortgage for more than two years prior to the marriage, as well as after the parties were married through 2003, when a satisfaction of mortgage was issued, notwithstanding a principal balance remaining of approximately $52,000. Supreme Court determined that the wife's contributions transformed the residence from the husband's separate property into marital property, which was subject to equitable distribution. ...[W]e disagree. * * *

 

...[W]hile Supreme Court's finding that the wife made certain substantial contributions of money and effort toward the acquisition and maintenance of the marital residence is amply supported by the record, the effect of such contributions by the wife — particularly those she made before the marriage — is not to transform the husband's premarital, separate property into marital property ... . *  *  *

 

We note, however, that separate property contributions by a nontitled spouse could result in an appreciation of the value of the titled spouse's separate property during the marriage, which appreciation would be subject to equitable distribution ... . Here, inasmuch as the wife failed to prove the value of the residence at the time the parties were married, the amount of the property's appreciation during the marriage — and, hence, the wife's equitable share thereof — cannot be ascertained ..., and no award may be made on this basis ... .

 

We agree, however, with the wife's alternative argument that she is entitled to recoup her equitable share of marital funds paid toward the mortgage. It is well settled that, in determining the "equitable distribution of marital property, a court has the authority to effectively recoup marital funds applied to the reduction of one party's separate indebtedness" ... . Here, the wife testified that she paid the mortgage on the marital residence from the date of the marriage until a satisfaction of mortgage was issued. Although it is not evident from the record what funds were used to make these payments, it can be presumed that marital funds were used (see Carr v Carr, 291 AD2d 672, 676 [2002]). Thus, the wife is entitled to an equitable share of the marital funds that were used to pay the husband's separate indebtedness — the mortgage — during the marriage... . Ceravolo v DeSantis, 2015 NY Slip OP 00266, 3rd Dept 1-8-15

 

 

FAMILY LAW/EVIDENCE

 

Evidence Insufficient to Support Neglect Finding, Criteria Explained/Repetition of Child's Out-of-Court Statement Does Not Corroborate It

 

In reversing Family Court's finding of neglect, the Third Department explained the analytical criteria and noted that a child's out-of-court statement about his alleged consumption of alcohol was not corroborated by the child's repetition of the statement:

 

"[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" ... . "In order for danger to be imminent, it must be near or impending, not merely possible" ... , and regarding degree of care "the statutory test is minimum degree of care — not maximum, not best, not ideal" ... .

 

...[W]e note that one factual determination made by Family Court as supporting its finding of neglect was that respondent allegedly pressured [the child] to take a sip of her eggnog and brandy beverage at the party. The child did not testify, but the court found that his out-of-court statement was sufficiently corroborated because he had made such a statement to two different adults, although he had both denied and affirmed the allegation to one of the adults. While the corroboration requirement is low ..., "[i]t is well settled that 'repetition of an accusation by a child does not corroborate [that] child's prior account'" ... . Here, the out-of-court repetition of the statement did not provide sufficient corroboration and the statement should not have been considered as part of the neglect determination. Matter of Cadence GG..., 2015 NY Slip OP 00261, 3rd Dept 1-8-15

 

FAMILY LAW, EVIDENCE.

 

Evidence Did Not Support Imposition of Supervised Visitation Re: Mother's Older Children---Evidence Included Family Court's Taking Judicial Notice of Neglect Findings Re: Mother's Younger Children

 

The Third Department, in a full-fledged opinion by Justice Egan, determined Family Court's imposition of supervised visitation between mother and her two older children was not supported by the evidence---evidence which included Family Court's taking judicial notice of the neglect proceedings involving mother's younger children:

 

As for the grounds upon which Family Court elected to impose supervised visitation, although Family Court indeed was entitled to take judicial notice of the three neglect proceedings brought against the mother with respect to [the older children's] maternal half siblings, two of the three proceedings predated the 2011 custody order wherein Family Court — following a hearing — granted the mother (unsupervised) visitation with [the older children]. Additionally, nothing in the record suggests that derivative findings of neglect were sought with respect to [the older children] in any of the neglect proceedings brought against the mother. To the extent that Family Court further relied upon the mother's allegedly unaddressed mental health and anger management issues, as well as her purported lack of stable housing, these conclusory and unsubstantiated hearsay statements — taken verbatim from the permanency hearing report prepared by one of petitioner's caseworkers — are not, to our analysis, the type of evidence that may be invoked to significantly curtail the mother's preexisting visitation rights with [the older children]. Finally, the sole witness to testify at the combined hearing was the mother, who detailed her visitation history with [the older children], revealed that she regularly exercised her visitation rights and indicated that such visits generally went well. Although the mother acknowledged that she and her teenage children did not always see eye to eye, the record as a whole fails to establish that affording the mother unsupervised visitation with [the older children] — who were 16 years old and 15 years old, respectively, at the time of the hearing — "would be inimical to the child[ren]'s welfare" ... . Matter of Damian D..., 2015 NY Slip Op 00263, 3rd Dept 1-8-15

 

 

LANDLORD-TENANT/REAL PROPERTY LAW/ATTORNEYS

 

Tenant Entitled to Attorney's Fees After Successfully Defending Landlord's Holdover Action---Discretion to Deny Attorney's Fees Should Be Used Sparingly Because of the Purpose of the Controlling Statute

 

The First Department reversed the Appellate Term finding that a tenant who successfully defended a holdover action brought by the landlord was entitled to attorney's fees. After several lease renewals at a "preferential" rate, the landlord required that a renewal be at the "legal" rate (several thousand dollars higher than the preferential rate) and started a holdover proceeding when the tenant refused to pay the "legal" rate.  Appellate Term decided the tenant was not entitled to attorney's fees because the landlord had a "colorable claim" that it was entitled to charge the "legal" rate.  The First Department explained that whether the landlord had a "colorable claim" was not the correct standard to apply:

 

Under Real Property Law § 234, when a residential lease provides for a landlord's recovery of attorneys' fees resulting from a tenant's failure to perform a lease covenant, a reciprocal covenant is implied requiring the landlord to pay the tenant's attorneys' fees incurred as a result of, inter alia, the tenant's successful defense of an action or summary proceeding commenced by the landlord arising out of the lease ... . To support an award of attorneys' fees, the tenant must be the prevailing party, that is, the result must be substantially favorable to the tenant ... .

 

Here, the terms of the parties' lease plainly triggers the reciprocal covenant mandated by Real Property Law § 234, and the tenant is entitled to recover the attorneys' fees incurred in his successful defense of the holdover proceeding. Contrary to the landlord's assertion, the tenant was the prevailing party regardless of whether the holdover proceeding was formally dismissed, since a tenant is entitled to recover fees "when the ultimate outcome is in his favor, whether or not such outcome is on the merits" ... .

 

Despite the tenant's status as the prevailing party, the Appellate Term nevertheless denied the fee request because, in its view, the landlord's possessory claim was "of colorable merit" ... . This was an improper standard. "The overriding purpose of [Real Property Law § 234] is to provide a level playing field between landlords and tenants, creating a mutual obligation that provides an incentive to resolve disputes quickly and without undue expense" ... . Because it is a remedial statute, Real Property Law § 234 "should be accorded its broadest protective meaning consistent with legislative intent" ... . The Appellate Term's conclusion that a tenant's claim to reciprocal attorneys' fees can be denied whenever a landlord asserts a colorable claim undermines the salutary purpose of Real Property Law § 234. A "colorable claim" standard would result in the gutting of the protections afforded by the statute because it would allow courts to deny fees whenever the landlord can make a nonfrivolous legal argument in support of its position.

 

Although courts have some discretion to deny attorneys' fees sought under Real Property Law § 234, such discretion should be exercised sparingly ... . Thus, a request for attorneys' fees should be denied only where a fee award would be manifestly unfair or where the successful party engaged in bad faith ... .

 

Here, the landlord has made no showing of any bad faith on the tenant's part. Matter of 251 CPW Hous LLC v Pastreich, 2015 NY Slip Op 00208, 1st Dept 1-6-15

 

 

NEGLIGENCE

 

Competing Expert Affidavits Raised a Question of Fact About Whether the Speed of Defendant's Vehicle Was a Proximate Cause of the Accident---Plaintiff's Vehicle Was Struck Broadside by Defendant's Vehicle When Plaintiff Pulled Into Traffic--Supreme Court's Grant of Summary Judgment to Defendant Reversed

 

The Third Department determined that plaintiff had raised a question of fact whether the speed of defendant's vehicle was the proximate cause of the accident.  Plaintiff had pulled into traffic and was struck broadside by defendant. Supreme Court had granted defendant's motion for summary judgment:

 

It is uncontested that plaintiff's portion of the intersection was controlled by a blinking red light, and that she was therefore required to yield the right-of-way to oncoming vehicles that were "approaching so closely . . . as to constitute an immediate hazard" (Vehicle and Traffic Law § 1142 [a]; see Vehicle and Traffic Law § 1113 [a]). * * *

 

In opposition to defendant's motion, plaintiff submitted the affidavit of a certified accident reconstructionist and former police officer. Using the same data as defendant's expert, plaintiff's expert concluded that, at the time defendant began braking, she was traveling at a faster speed of 49.95 mph, and he opined that had defendant not been exceeding the speed limit, plaintiff would have had sufficient time to safely clear defendant's lane of travel and complete her turn. * * * The two experts utilized the same data and, while they arrived at different conclusions with respect to defendant's speed, "a disagreement . . . between experts merely creates a question of credibility to be resolved by the finder of fact" ... . 

 

Upon a defendant's motion, the evidence must be viewed in the light most favorable to the plaintiff ... . It is well established that "there may be more than one proximate cause of an accident" ... . Upon review, we find that plaintiff's evidence gives rise to material issues of fact as to whether defendant's speed was excessive and, if so, whether her speed was a proximate cause of the collision ... . O'Brien v Couch, 2015 NY Slip OP 00273, 3rd Dept 1-8-15

 

REAL PROPERTY LAW, MUNICIPAL LAW.

 

Restrictive Covenants in Homeowners' Association's Declaration Do Not Apply to Land Along a Road Which Had Been Dedicated by the Association to the Town

 

The Third Department determined a homeowners' association (HPHA) could not restrict the placement of a political sign on property along a road which had been dedicated to the town.  Because there was no evidence the HPHA reserved the right to regulate signs on the strip of land transferred to the town, the HPHA had no authority to prohibit the placement of a sign on the land:

 

Respondents contend that, although Hudson Pointe, Inc. dedicated land to the Town for the purpose of maintaining the roads within the development, such dedication was subject to the restrictive covenants contained in HPHA's Declaration. Thus, according to respondents, although petitioners' political signs were located on Town property, HPHA maintained the authority to enforce its sign restriction on this public land. Generally, the process of dedication is "of the nature of a gift by a private owner to the public" ..., and dedication requires, among other things, "absolute relinquishment to public use by the owner" .... Thus, a town may acquire a road in fee through dedication "when there has been a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act [by public authorities] adopting the highway . . . coupled with a showing that the road was kept in repair or taken in charge by public authorities" (...see Highway Law § 171///).

 

While the record is devoid of evidence of the Town's acceptance of ownership of the roads within the development, the parties do not dispute that the land in question is owned by the Town through dedication. The 1997 deed conveying certain property within the development from Hudson Pointe, Inc. to the Town, contained in the record, does not explicitly reserve to HPHA or Hudson Pointe, Inc. any interest in the conveyed property. In the absence of such reservation, respondents lack the authority to enforce HPHA's sign restriction on Town land as a matter of law ... . Matter of Jasinski v Hudson Pointe Homeowners Assn Inc, 2015 NY Slip OP 00274, 3rd Dept 1-8-15

 

 

 

REAL PROPERTY LAW/FORECLOSURE

 

Deed Was Not a "Deed in Lieu of Foreclosure;" Deed Therefore Did Not Transfer Title; Mortgagor's Interest Can Be Extinguished Only by Foreclosure 

 

The First Department determined a deed constituted a mortgage pursuant to Real Property Law 320, and was not a "deed in lieu of foreclosure."  Therefore the deed recorded by the defendants did not transfer ownership to them and defendants must foreclose on the mortgage to extinguish the mortgagor's interest:

 

Real Property Law § 320 codifies the well-settled common law principle "that the giving of a deed to secure a debt, in whatever form and however structured, creates nothing more than a mortgage" ... . The statute does not require a conclusive showing that the transfer was intended as security; rather, it is sufficient that the conveyance appears to be intended only as "a security in the nature of a mortgage" ... .

 

Therefore, as the motion court properly found, "The holder of a deed given as security must proceed in the same manner as any other mortgagee — by foreclosure and sale — to extinguish the mortgagor's interest" ... . This conclusion holds true because the mortgagor has the right of redemption, and that right cannot be waived or abandoned by any stipulation of the parties, even if the waiver is embodied in the mortgage ... . Patmos Fifth Real Estate Inc v Mazl Bldg LLC, 2015 NY Slip OP 00278, 1st Dept 1-8-15

 

TRUSTS AND ESTATES

 

Proof Insufficient to Demonstrate Will Drafted and Signed a Few Days Before Death Reflected Decedent's Intentions

 

The Third Department affirmed Surrogate's Court's denial of the admission of a will to probate.  The will was drafted and signed a few days before decedent's death and changed the disposition of property.  The court described the proof necessary to authenticate a will and determined the proof was insufficient to link the most recent will to decedent's intentions:

 

"In order for a will to be duly executed and attested in New York, the testator must sign the document at the end; the testator must sign or acknowledge the signature in the presence of the attesting witnesses; the testator must declare to each of the attesting witnesses that the instrument is his or her will; and there must be two attesting witnesses who shall, within 30 days, attest the testator's signature and, at the request of the testator, sign their names and affix their residence addresses" (...see EPTL 3-2.1). Before admitting a will to probate, Surrogate's Court must be satisfied that the will has been validly executed (see SCPA 1408 [1]...), "that the mind of the testator accompanied the act, and that the instrument executed speaks his [or her] language and really expresses his [or her] will" ... . The proponent of a will bears the burden of proving its validity by a preponderance of the evidence ... . * * *

 

In light of the uncertainty surrounding the drafting and execution of this will, we decline to disturb the decree of Surrogate's Court denying admission of the will to probate ... . Matter of Walker, 2015 NY Slip Op 00271, 3rd Dept 1-8-15