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July Part II

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Family Court Had Jurisdiction But New York Not a

Convenient Forum


The Second Department determined Family Court’s finding that it did not have jurisdiction (over a visitation petition) under the Uniform Child Custody Jurisdiction and Enforcement Act was error.  But the Second Department went on to determine that New York was an inconvenient forum for the proceeding:


A New York Family Court has jurisdiction to make an initial custody determination if "(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state" (Domestic Relations Law § 76[1][a]). " Home state' means the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding" (Domestic Relations Law § 75-a[7]). 


…"[T]he inquiry is not completed merely by a determination that a jurisdictional predicate exists in the forum State, for then the court must determine whether to exercise its jurisdiction" … . A court of this state which has jurisdiction under the UCCJEA may decline to exercise it if it finds, upon consideration of certain enumerated factors, that New York is an inconvenient forum and that a court of another state is a more appropriate forum (see Domestic Relations Law § 76-f[1];…). While the Family Court did not consider the enumerated factors, the record is sufficient to permit this Court to consider and evaluate those factors… 


…[T]he "evidence regarding [the children’s] care, well-being, and personal relationships is more readily available" in Georgia... Under these circumstances, Georgia is the more appropriate and convenient forum … . Matter of Balde v Balde, 2013 NY slip Op 05204, 2nd Dept 7-10-13



No Constructive Emancipation or Abandonment


In affirming Family Court’s denial of father’s petition to modify child support, the Second Department explained the doctrine of constructive emancipation, noting that a child’s reluctance to see a parent is not abandonment:


The father claimed that he should no longer be required to pay support because the mother had alienated the child from him. Under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support…. However, a child's reluctance to see a parent is not abandonment…. There is no evidence in the record that the child has refused all contact and visitation with the father.  Matter of Grucci v Villanti, 2013 NY Slip Op 05209, 2nd Dept 7-10-13



Family Offense Must Be Established by Fair Preponderance


The Second Department determined the family offense of attempted assault in the second degree had not been “established by a fair preponderance of the evidence” in Family Court:


A family offense must be established by a fair preponderance of the evidence (see Family Court Act § 832;…). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the credibility determinations of that court, which has the advantage of seeing and hearing the witnesses, are entitled to considerable deference on appeal" … .Here, a fair preponderance of the credible evidence did not support the Family Court's determination that the appellant committed the family offense of attempted assault in the second degree (see Family Court Act §§ 812[1], 832; Penal Law §§ 110.00, 120.05[1]… .  Matter of Hubbard v Ponce DeLeon, 2013 NY slip Op 05211, 2nd Dept 7-10-13






Criteria for Constructive Trust Not Met


In affirming Supreme Court’s ruling that plaintiff had failed to establish money given to the defendant (plaintiff’s son) by the plaintiff, originally for the purchase of a lake house, was held by the defendant as a constructive trust, the Third Department explained:


Plaintiff failed to establish the necessary elements of a constructive trust, which include a confidential or fiduciary relationship, a promise, a transfer in reliance thereon and  unjust enrichment….    Although plaintiff contends that there was a relationship of trust at the time the money was given to defendant based on the familial relationship and plaintiff's belief that, despite his criminal history, defendant had  turned his life around,  this argument  is contradicted  by plaintiff's own testimony that he and defendant were "never too friendly," his relationship with defendant was  "at arm's length" and he felt defendant was "always . . . hiding something from me."    Furthermore, there was no indication that defendant attempted to take advantage of plaintiff's trust by encouraging the transfer or that plaintiff was under defendant's influence in any way.    The record supports Supreme Court's finding that the idea of buying a lake house was eventually abandoned and the money was given to defendant for placement in a mutual fund account in his name alone by plaintiff, who had significantly more education, business and  financial experience  than  defendant.  Garcia v Garcia, 515582, 3rd Dept 7-11-13






Criteria for Causes of Action Discussed in Extensive Modification of Supreme Court’s Orders


In extensively modifying Supreme Court’s rulings in an action to foreclose a mechanic’s lien, the set aside alleged fraudulent conveyances pursuant to Debtor and Creditor Law section 273, and to recover damages for diversion of trust assets pursuant to article 3-a of the Lien Law, the Second Department explained (1) the effect of obtaining a bond on the Debtor/Creditor and Lien Law causes of action; when the Lien Law cause of action accrues; and (3) the Lien Law has an exception designed to protect purchasers of realty:


The Supreme Court improperly awarded judgment … to set aside conveyances of the property as fraudulent pursuant to Debtor and Creditor Law § 273. Once [defendant] "obtained a bond to discharge the mechanic's lien, the debt no longer existed for the purposes of Debtor and Creditor Law § 273"… . 


However, contrary to the appellants' contention, the discharge of a mechanic's lien by the filing of a bond is not equivalent to payment or discharge of a trust claim pursuant to Lien Law article 3-A … Further, contrary to the appellants' contention, those causes of action were not time-barred by Lien Law § 77(2), which provides that no action to enforce a trust under article 3-A of the Lien Law "shall be maintainable if commenced more than one year after the completion of such improvement." "The one-year period does not begin to run from the date of substantial completion, but from the date of completion of all work"… .


"While the Lien Law is generally designed to protect contractors, material providers and other classes of workers who supply labor or furnish materials, subdivision (5) of section 13 is an exception which is specifically designed to protect purchasers of realty"… . Holt Constr Corp v Grand Palais LLC, 2013 NY Slip Op 05189, 2nd Dept 7-10-13






Criteria for Fraudulent Conveyance


In reversing Supreme Court, the Second Department determined the plaintiff was entitled to summary judgment in a fraudulent conveyance action.  The court explained the relevant legal principles as follows:


Pursuant to Debtor and Creditor Law § 276, [e]very conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors'" …. "Direct evidence of fraudulent intent is often elusive. Therefore, courts will consider badges of fraud,' which are circumstances that accompany fraudulent transfers so commonly that their presence gives rise to an inference of intent"…. A plaintiff that successfully establishes actual intent to defraud is entitled to a reasonable attorney's fee under Debtor and Creditor Law § 276-a …. * * *


The plaintiff presented evidence of badges of fraud, including, inter alia, a close relationship between the parties to the transaction, inadequate consideration for the transaction, and the retention of the benefit of the property by Elyahou, who continued to reside in the premises following the transfer… .  5706 Fifth Ave LLC v Louzieh, 2013 NY Slip Op 05187, 2nd Dept, 7-10-13






Criteria Where Defendant Not Specifically Mentioned in Allegedly Defamatory Statement


In affirming Supreme Court’s dismissal of a defamation cause of action, the Second Department explained the plaintiff’s burden when the plaintiff is not specifically named in the allegedly defamatory statements:


While a plaintiff need not be specifically named in a publication to sustain a cause of action sounding in defamation, a plaintiff who is not specifically identified "must sustain the burden of pleading and proving that the defamatory statement referred to him or her" … .. "In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff"…. A court may grant a motion to dismiss a defamation cause of action if the complaint cannot support a finding that the statement refers to the plaintiff …. Indeed, the burden of pleading and proving that statements are " of and concerning'" the plaintiff … is not a " light one'"… . Dong v Hai, 2013 NY Slip Op 05091, 2nd Dept 7-10-13






Action Properly Brought by Third Party Beneficiary of Indemnity Agreement


The Second Department affirmed Supreme Court’s denial of a motion to dismiss brought by a defendant who had entered an indemnity agreement with a judgment debtor.  The Second Department explained that plaintiff had stated a cause of action based upon plaintiff’s being a third-party beneficiary of the indemnity agreement:


Pursuant to CPLR 5227, a special proceeding may be commenced by a judgment creditor "against any person who it is shown is or will become indebted to the judgment debtor." Such a proceeding is properly asserted against one who agreed to indemnify the judgment debtor in the underlying proceeding. The judgment creditor stands in the judgment debtor's shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party… * * *. 


Here …the judgment debtor … was not a party to the indemnification agreement. However, the Supreme Court properly determined that [the judgment debtor] was an intended third-party beneficiary of the indemnification agreement. Parties asserting third-party beneficiary rights under a contract must establish: (1) the existence of a valid and binding contract between other parties; (2) that the contract was intended for their benefit; and (3) that the benefit to them is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate them if the benefit is lost…. Where performance is rendered directly to a third party, it is presumed that the third party is an intended beneficiary of the contract…. 


Indemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed…. Here, however, the intent … to benefit [the judgment debtor] is apparent from the face of the indemnification agreement… . Matter of White Plains Plaza Realty LLC, 2013 NY Slip Op 05220, 2nd Dept 7-10-13



Waiver of Appeal Invalid/Counsel Did Not Take Position Adverse to Client Re: Pro Se Motion


In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:


County Court failed to adequately distinguish the right to appeal from  those rights that are automatically forfeited upon  a guilty plea, thus rendering defendant's appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was  also waiving his right to appeal the harshness of his sentence …. Nor do we  find that the deficiencies in the allocution are cured by defendant's written appeal waiver…  * * *


…[D]efense counsel's negative  response  to County  Court's inquiry  at the outset of the hearing as to whether  "there [was] any  legal basis in [counsel's] knowledge to allow [defendant] to withdraw his plea of guilty" was clearly not an opinion on the merits of defendant's pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine  the arguments  that defendant sought to present to the court… .  People v Pimentel, 104070, 3rd Dept 7-11-13




Refusal to Allow Relative’s Testimony Did Not Deny Right to Present a Defense


The Second Department determined defendant was not denied his right to present a defense by County Court’s refusal to allow defendant’s sister-in-law to testify:


A criminal defendant has a fundamental right to produce witnesses, and "absent a showing of bad faith, an application to produce witnesses whose testimony would be relevant to the defense should not be denied"…. However, a trial court may, in its discretion, exclude evidence that is of slight or remote significance, speculative, lacking a good-faith factual basis, or solely based on hearsay….


In the instant case, the proposed testimony of the defendant's sister-in-law regarding the relationship between the defendant and his wife consisted largely of hearsay, was cumulative to other evidence, and was only marginally, if at all, relevant. Consequently, the County Court did not improvidently exercise its discretion in precluding that testimony, and that ruling did not deprive the defendant of the right to present a defense… .  People v Strzelecki, 2013 NY Slip Op 05233, 2nd Dept 7-10-13






DNA Evidence Not Testimonial---No Denial of Right to Confrontation


In affirming defendant’s conviction, the Second Department noted that DNA evidence did not violate defendant’s right of confrontation because the challenged evidence was not testimonial:


[Defendant’s] right of confrontation (see US Const Sixth Amend) was not violated when an expert testified that a DNA profile produced by the Office of the Chief Medical Examiner (hereinafter OCME) from a sample of the decedent's blood matched a DNA profile produced by the OCME from a sample of a stain on a pair of jeans given to the office by the police department. The DNA profiles were not testimonial …, but rather, were merely raw data that, standing alone, did not link the defendant to the crime… . The connection of the defendant to the crime was made by the testimony of police officers establishing that the defendant was wearing the subject jeans when arrested, and of the DNA expert, who testified that, based on his analysis, the two subject DNA profiles matched…. People v Pitre, 2013 NY slip Op 05231, 2nd Dept 7-10-13





Therapeutic Dog Allowed In Court to Support Alleged Child Victim of Sexual Offenses During Trial Testimony


The Second Department, in a full-fledged opinion by Justice Sgroi, determined that the “courts of this State should permit the presence of a therapeutic ‘comfort dog’ in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.”  The defendant was charged with predatory sexual assault against a child.  The alleged victim was his daughter who 15 years old at the time of trial.  It was alleged that the victim twice became pregnant by the defendant and the defendant arranged for abortions in both instances.  The Second Department found support for its determination in Executive Law section 642-a (procedures making the judicial process less threatening to child victims).  The Second Department rejected defendant’s arguments that the presence of the dog violated his right to due process of law and right of confrontation.  People v Tohom, 2013 NY Slip Op 05234, 2nd Dept 7-10-13






Prosecutor Need Not Accept Defendant’s Stipulation in Lieu of DNA Test


The Second Department affirmed Supreme Court’s denial of an Article 78 petition seeking prohibition with respect to an order that petitioner allow a buccal swab for DNA testing.  The petitioner argued that his offer to stipulate his DNA matched the DNA on two firearms should preclude the test. The Second Department held that a prosecutor was under no obligation to accept the offer to stipulate:


"[A] court order to obtain a [bodily] sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a clear indication' that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable"…. "In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other" …. Here, the petitioner … contends that the People's motion should have been denied on the ground that his offer to stipulate that his DNA matched the DNA recovered from the two firearms at issue provided a less intrusive method of obtaining the evidence. However, the law is manifestly clear that the People are under no obligation to accept an offer by a defendant to stipulate to a fact or to an element of a charged crime …, and "the decision as to whether to decline or accept such a stipulation lies wholly within the prosecutor's discretion"…. Accordingly, since the petitioner has failed to demonstrate a clear legal right to the extraordinary remedy of prohibition, his petition is denied … .  Matter of Johnson v Shillingford, 2013 NY slip Op 05212, 2nd Dept 7-10-13






“John Doe” Party Who Was Not Served Waived Objection to Personal Jurisdiction


The First Department determined that an informal appearance by a “John Doe” party who was not served with the complaint waives any objection to personal jurisdiction.  The action stemmed from plaintiff’s decedent’s drowning at Coney Island:


CPLR 1024 allows for the commencement of an action against an unknown party…. While the use of a John Doe designation does not exempt a plaintiff from the requirement of serving process on the intended defendant by an authorized method under CPLR article 3…, a defendant may appear informally by actively litigating the action before the court…. When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court…. Thus, absent a formal "appearance" by a defendant, a defendant may nevertheless appear in an action where his or her counsel communicates a clear intent to participate… . Taveras v City of New York, 2013 NY Slip Op 05199, 2nd Dept 7-10-13






Notice to Admit Improperly Sought Admission at Heart of Case


The Third Department determined Supreme Court abused its discretion when it denied defendant’s motion for a protective order pursuant to CPLR 3103(a).  The plaintiff had sought a notice to admit that a vehicle owned by the defendant and operated by defendant’s employee ‘was in contact with the plaintiff.”  The Second Department wrote:


"The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial"…. Here, the plaintiff's notice to admit improperly sought the defendant's admission concerning a matter that went to the heart of the controversy in this case…. Moreover, " the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial'" …. Accordingly, the Supreme Court should have granted the defendant's motion for a protective order. Ramcharran v NY Airport Services LLC, 2013 NY Slip Op 05195, 2nd Dept 7-10-13






Executor’s Motion to Be Substituted for Decedent in Negligence Action Too Late

In affirming the dismissal of an executor’s motion to be substituted as a party in a negligence action (on behalf of the decedent), the Second Department explained:

CPLR 1021 provides, in pertinent part, "[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate." CPLR 1021 requires a motion for substitution to be made within a reasonable time … . The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit…. 

The Supreme Court providently exercised its discretion in denying the appellant's motion pursuant to CPLR 1015 for leave to substitute himself as a party plaintiff and granting the defendant's cross motion pursuant to CPLR 1021 to dismiss the complaint, in light of the 21-month delay in obtaining preliminary letters testamentary, the further one-year delay in seeking substitution, the failure to demonstrate a reasonable excuse for the delays, the absence of any affidavit of merit, and the prejudice to the defendant… .  Terpis v Regal Hgts Rehabilitation & Health Care Ctr Inc, 2013 NY Slip Op 05200, 2nd Dept 7-10-13

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