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Failure to Hold a Hearing on Mother’s Petition for Custody and Failure to Inform Father of Right to Counsel Required Reversal of Custody Determination

The Second Department determined Family Court’s failure to hold a hearing to determine the mother’s petition for custody, and the Court’s failure to advise the father that he had the right to counsel, required reversal of the grant of custody to the mother.  In the Matter of Savoca v Bellofatto, 2012-02935, Docket No V-22033-11, Second Dept 3-6-13

 

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PLAINTIFF’S FAILURE TO MEET THE COURT’S FILING DEADLINE WAS NOT A SUFFICIENT REASON FOR SUA SPONTE DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).
PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED.
MOTHER DID NOT HAVE STANDING TO BRING AN ACTION TO VACATE THE ADOPTION OF HER CHILD BY HER FORMER HUSBAND PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) BECAUSE THE ACT ONLY APPLIES TO CHILDREN REMOVED FROM A PARENT’S CUSTODY (SECOND DEPT).
PRIOR RULINGS ON APPEAL CONSTITUTE THE LAW OF THE CASE, SUPREME COURT RULING TO THE CONTRARY REVERSED (SECOND DEPT).
DEFENDANT DID NOT STRIKE PLAINTIFF AND WAS UNDER NO DUTY TO PROTECT PLAINTIFF FROM AN ASSAULT BY OTHERS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS BAR-FIGHT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT).
THE DEFENSE DID NOT NEED TO PROVIDE PLAINTIFF WITH “EXPERT-OPINION” NOTICE OF ITS INTENT TO CALL PLAINTIFF’S TREATING PHYSICIAN TO TESTIFY THAT PLAINTIFF’S COGNITIVE DEFICITS WERE THE RESULT OF A PRIOR STROKE, NOT THE TRAFFIC ACCIDENT; THE DOCTOR’S TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND THE $2,000,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).
THE ALLEGED MISPRESENTATION IN PLAINTIFF’S APPLICATION FOR CAR INSURANCE, I.E., THAT SHE LIVED IN NEW ROCHELLE AND THE CAR WOULD BE GARAGED THERE WHEN IN FACT SHE LIVED IN BROOKLYN AND THE CAR WOULD BE GARAGED THERE, WAS NOT DEMONSTRATED TO HAVE BEEN “MATERIAL” AS A MATTER OF LAW; THE INSURER HAD DENIED COVERAGE BASED UPON THE ALLEGED MISREPRESENTATION; THE INSURER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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