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WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY.

The Second Department determined plaintiff wife was entitled to a share of husband’s separate property that was commingled with marital funds, as well as a share of the appreciation of husband’s separate property. Husband, a firefighter, received an award from the September 11th Victim Compensation Fund, which was placed in a joint checking account and then used to buy investment property:

… [S]eparate property that is commingled, for example, in a joint bank account, loses its character of separateness and a presumption arises that each party is entitled to a share of the funds … . “That presumption, however, may be overcome by clear and convincing evidence, either direct or circumstantial, that the account was created only as a matter of convenience” … . The presumption may also be overcome by evidence that the account, although joint, is managed solely by one party … , or that the funds were deposited into the joint account only briefly … . In this case, the Supreme Court correctly determined that by depositing the proceeds of the award into the parties’ joint account, the defendant’s separate property lost its character of separateness and a presumption arose that each party was entitled to a share of the funds, which was not rebutted. …

The record supports the Supreme Court’s determination that the direct and indirect contributions of the plaintiff, as the nontitled spouse, contributed to the appreciation in the value of the defendant’s separate properties. Therefore, the plaintiff was entitled to a share of that appreciation … . Brown v Brown, 2017 NY Slip Op 01175, 2nd Dept 2-15-17

 

FAMILY LAW (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/SEPARATE PROPERTY (FAMILY LAW, (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/MARITAL PROPERTY (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)

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EVIDENCE DID NOT SUPPORT TEMPORARY REMOVAL OF CHILD FROM FATHER’S CUSTODY DURING THE PENDENCY OF A CHILD PROTECTIVE PROCEEDING (SECOND DEPT).
THE SEPARATION AGREEMENT PROVIDED THAT THE PARTIES “SHALL” CONSULT EACH OTHER ON HEALTH DECISIONS FOR THE CHILD BUT FATHER HAD THE CHILD INOCULATED WITHOUT CONSULTING MOTHER; BECAUSE THE PARTIES AGREED THE CHILD WOULD ATTEND PUBLIC SCHOOL, AND INOCULATION IS REQUIRED BY THE PUBLIC HEALTH LAW, MOTHER DID NOT DEMONSTRATE SHE WAS PREJUDICED BY THE BREACH OF THE SEPARATION AGREEMENT; THEREFORE MOTHER’S MOTION TO HOLD HUSBAND IN CONTEMPT WAS PROPERLY DENIED (SECOND DEPT).
PRINCIPAL OFFICE OF A FOREIGN LIMITED LIABILITY COMPANY, AS LISTED ON THE DEPARTMENT OF STATE APPLICATION FOR AUTHORITY TO CONDUCT BUSINESS, IS THE CONTROLLING LOCATION FOR VENUE PURPOSES.
MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED.
DEFENDANTS’ DEFAULT IN MAKING MORTGAGE PAYMENTS WAS NOT SUPPORTED BY THE SUBMISSION OF THE RELEVANT BUSINESS RECORDS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA AND DID NOT HAVE A PRACTICAL ABILITY TO OBJECT, THEREFORE AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIES, MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (SECOND DEPT).
FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT).

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FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL. FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARIN...