You are here: / / Family Court Has No Power to Add to Terms of Remittitur
,

Family Court Has No Power to Add to Terms of Remittitur

The Second Department determined Family Court had failed to comply with the terms of its remittitur.  On appeal, the Second Department previously determined that the mother’s commitment to jail for failure to comply with a court order should be reduced from six months to 30 days.  Family Court then committed the mother to 30 days but added she was not to receive allowances for good behavior.  Because the “no allowances for good behavior” was not part of the appellate remittitur, that portion of Family Court’s order was invalid:

Upon a remittitur, a court is ” without power to do anything except to obey the … mandate of the higher court'” … . Here, the Family Court erred in failing to adhere to the terms of this Court’s remittitur by including in the amended order of commitment a provision directing that the mother would not receive time allowances for good behavior. We note that, although the mother is eligible for such time allowances (see Correction Law § 804-a[1]… ), the determination as to whether they should be granted is to be made by the person in charge of the institution where she is committed (see Correction Law § 804-a[3]… . Accordingly, we remit the matter to the Family Court, Nassau County, for the issuance of a second amended order providing that the mother is to be committed to the Nassau County Correctional Facility for a term of 30 days “unless sooner discharged according to law.”  Matter of Cunha v Urias, 2013 NY Slip Op 08624, 2nd Dept 12-26-13

 

 

You might also like
PROOF OF THE VALUE OF THE STOLEN ITEMS WAS INSUFFICIENT; GRAND LARCENY 3RD DEGREE CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE (SECOND DEPT).
Defendant Did Not Waive the Statute of Limitations Defense, Pled In Its Answer, by Failing to Assert It in a Pre-Answer Motion to Dismiss—Although Defendant’s Post-Answer Motion Was Ostensibly Brought Pursuant to CPLR 3211(a)(5), the Parties Laid Bare Their Proof and Supreme Court Properly Treated the Motion as One for Summary Judgment Pursuant to CPLR 3212 Seeking Dismissal of the Complaint as Time-Barred
DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, ON APPEAL PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT).
THERE WAS NO EVIDENCE MOTHER PREVIOUSLY FILED FRIVOLOUS VISTATION PETITIONS; THE JUDGE SHOULD NOT HAVE PROHIBITED HER FROM FILING FUTURE PETITIONS WITHOUT LEAVE OF COURT (SECOND DEPT). ​
General Obligations Law Prohibition of Indemnification Agreements Which Exempt a Lessor from Its Own Negligence Does Not Apply to a Commercial Lease Negotiated at Arm’s Length Between Sophisticated Parties With an Insurance Procurement Requirement
SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES IS AN AFFIRMATIVE DEFENSE WHICH CAN BE WAIVED; THE JUDGE, THEREFORE, SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ARTICLE 78 PETITION ON THAT GROUND; PETITION REINSTATED (SECOND DEPT).
OFFICER DID NOT HAVE PROBABLE CAUSE TO SEARCH THE VAN AFTER HE LEARNED THAT DEFENDANT, WHO WAS SITTING IN THE PASSENGER SEAT, WAS SMOKING A CIGAR, NOT MARIJUANA, SUPREME COURT’S SUA SPONTE FINDING THAT DEFENDANT DID NOT HAVE STANDING TO CONTEST THE SEARCH WAS ERROR, THERE WAS UNCONTRADICTED EVIDENCE THE VAN WAS DEFENDANT’S WORK VEHICLE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Administrative Decision Maker, Who Had Previously Ruled Against Petitioner/Employee... French Court Never Had Personal Jurisdiction Over New York Defendant/Service...