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DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT).

The Second Department determined plaintiffs’ declaratory judgment action should have been brought as an Article 78 proceeding and was properly dismissed as untimely. The action concerned alleged violations of height restrictions on new construction which had been the subject of a final environmental impact statement (FEIS):

An action for a declaratory judgment is generally governed by a six-year statute of limitations (see CPLR 213[1]). However, where a declaratory judgment action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period … . Where an action could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies … .

A proceeding pursuant to CPLR article 78 may be brought to review a determination of a public body or officer which is “final and binding upon the petitioner” (CPLR 217[1]; see CPLR 7801[1]). There are two requirements for fixing the time when agency action is final and binding upon the petitioner: “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” … . A determination is final and the statute of limitations begins to run when the agency’s “definitive position on the issue [becomes] readily ascertainable” to the complaining party … , so that the petitioner knew or should have known that it was aggrieved… .

Here, the Supreme Court properly determined that this action could have been brought as a proceeding pursuant to CPLR article 78 … . Save The View Now v Brooklyn Bridge Park Corp., 2017 NY Slip Op 09189, Second Dept 12-27-17

CIVIL PROCEDURE (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/DECLARATORY JUDGMENT  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ARTICLE 78 (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ENVIRONMENTAL LAW (BUILDING HEIGHT RESTRICTIONS , ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ADMINISTRATIVE LAW  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))

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CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that an off-duty police officer (Rodriguez) working security at a bar was not acting within the scope of his employment during the encounter with plaintiff. Therefore the causes of action against the city based upon vicarious liability or respondeat superior, alleging negligence, assault and false imprisonment, should have been dismissed:​

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… [W]here there are no material disputed facts and there is no question that the employee’s acts fall outside the scope of his or her employment, the determination is one of law for the court and not one of fact for the jury … . A municipality may be held vicariously liable for the conduct of a member of its police department if the officer was engaged in the performance of police business… . Here, in support of their motion, the City defendants established that Rodriguez was at all relevant times off-duty, was engaged in other employment as a private citizen, was not in uniform, did not arrest plaintiff, and did not display his police badge. We thus conclude that the City defendants met their prima facie burden of establishing that Rodriguez was not acting within the scope of his employment as a police officer during the encounter with plaintiff … . In opposition, plaintiff failed to raise a triable issue of fact … . We reject plaintiff’s contention that Rodriguez’s identification of himself as a police officer during the encounter raised an issue of fact sufficient to defeat the motion with respect to the issue of scope of employment … . Maloney v Rodriguez, 2017 NY Slip Op 08993, Fourth Dept 12-22-17

 

NEGLIGENCE (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/MUNICIPAL LAW (CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))/POLICE OFFICERS (NEGLIGENCE, MUNICIPAL LAW, CITY NOT LIABLE FOR ACTIONS OF OFF-DUTY POLICE OFFICER WHO WAS ACTING OUTSIDE THE SCOPE OF HIS EMPLOYMENT DURING THE ENCOUNTER WITH PLAINTIFF (FOURTH DEPT))

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IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the village’s motion for summary judgment in this slip and fall case should have been granted. Where a municipality has a written notice requirement which has not been met, it still can be liable for a dangerous condition it created. However a defect which develops gradually over time, as opposed to immediately after some act by the municipality, is not actionable. Here the collapse of pavement near a storm drain was caused by water over time:

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There is no dispute that defendant established that it lacked prior written notice, thus shifting the burden to plaintiff to demonstrate that an exception to the general rule is applicable … . Such an exception exists where “the municipality affirmatively created the defect through an act of negligence” … . That exception, however, applies only “to work by the [municipality] that immediately results in the existence of a dangerous condition” … . Here, plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work … . Malek v Village of Depew, 2017 NY Slip Op 08998, Fourth Dept 12-22-17

 

NEGLIGENCE (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/MUNICIPAL LAW (SLIP AND FALL, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))/SLIP AND FALL (MUNICIPAL LAW, IN THIS SLIP AND FALL CASE, COLLAPSE OF PAVEMENT NEAR A STORM DRAIN WAS CAUSED BY WATER FLOWING INTO THE DRAIN OVER TIME AND WAS NOT THE IMMEDIATE RESULT OF ACTION TAKEN BY THE VILLAGE, THE CONDITION WAS NOT ACTIONABLE (FOURTH DEPT))

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PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)

The Fourth Department determined plaintiffs’ battery and medical malpractice causes of action properly survived summary judgment. The court noted that the defendants had submitted plaintiff’s testimony in support of summary judgment and thereby demonstrate triable issues of fact. With respect to the battery cause of action, the court wrote:

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It is “well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . Here, plaintiffs allege in the complaint that “defendant physician knew that . . . she was exceeding the scope of . . . plaintiff’s consent by performing a medical procedure that . . . plaintiff had not authorized” …  and, inasmuch as defendants do not challenge the battery claim with respect to the element of causation, we conclude that plaintiffs have stated such a claim. Tirado v Koritz, 2017 NY Slip Op 08954, Fourth Dept 12-22-17

 

NEGLIGENCE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’s TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT))/MEDICAL MALPRACTICE (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)/BATTERY (MEDICAL MALPRACTICE, (PLAINTIFFS’ BATTERY AND MEDICAL MALPRACTICE ACTIONS PROPERLY SURVIVED SUMMARY JUDGMENT, DEFENDANTS PAPERS, WHICH INCLUDED PLAINTIFF’S TESTIMONY, DEMONSTRATED TRIABLE ISSUES OF FACT (FOURTH DEPT)

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DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the lead-paint exposure complaint should not have been dismissed because, although the exposure occurred after the judgment of foreclosure on the property, it occurred before the foreclosure sale, when defendants still held title:

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… [D]efendants sought partial summary judgment dismissing those claims because defendants had lost title to the property by order of foreclosure entered on that date. We agree with plaintiff that the court erred in granting that part of defendants’ motion.

Although defendants established in support of that part of their motion that a judgment of foreclosure had been entered, it is well settled that ” [t]he entry of a judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until [a] sale is actually conducted’ ” … . It is undisputed that the actual sale of the property did not take place until April 1993, after plaintiff had allegedly been exposed to lead paint, and thus defendants failed to meet their burden on that part of their motion. Nero v Kendrick, 017 NY Slip Op 08980, Fourth Department 12-22-17

NEGLIGENCE (LEAD PAINT, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/FORECLOSURE (TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/REAL PROPERTY (FORECLOSURE, TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/LEAD PAINT (DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))

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ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the complaint against the company which owned a truck which struck plaintiff should not have been dismissed. The driver of the truck, an employee, was using it for personal purposes (driving bar to bar) at the time of the accident and was not acting within the scope of his employment. The company was not liable under the doctrine of respondeat superior. However, there was a question of fact whether the driver was using the truck with the company’s permission at the time of the accident, rendering the company liable pursuant to the Vehicle and Traffic Law:

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“It is well settled that Vehicle and Traffic Law § 388 (1) creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary” … . Even in the case of substantial evidence to the contrary, the issue of implied permission is ordinarily a question of fact for a jury … . The Court of Appeals … went so far as to state that “uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission will not necessarily warrant a court in awarding summary judgment for the owner” … . Baker v Lisconish, 2017 NY Slip Op 08943, Fourth Dept 12-22-17

 

NEGLIGENCE (TRAFFIC ACCIDENT, EMPLOYMENT LAW, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/EMPLOYMENT LAW (TRAFFIC ACCIDENT, RESPONDEAT SUPERIOR, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, PERMISSIVE USE, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/RESPONDEAT SUPERIOR (TRAFFIC ACCIDENTS,  ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/TRAFFIC ACCIDENTS (RESPONDEAT SUPERIOR, VEHICLE AND TRAFFIC LAW,  ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/PERMISSIVE USE (TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))

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DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment finding defendant negligent in this traffic accident case. Defendant made a left turn in front of an oncoming car and testified he did not see the oncoming car. That constituted negligence as a matter of law, irrespective of whether defendant stopped at a stop sign before the accident:

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Plaintiffs met their initial burden by establishing that defendant was negligent in violating Vehicle and Traffic Law § 1142 (a) by turning left at an intersection directly into the path of an oncoming vehicle and that defendant’s violation of the statute was unexcused … . Additionally, inasmuch as defendant admitted in his deposition testimony that he never saw the oncoming vehicle prior to the collision, we conclude that defendant was negligent as a matter of law in failing to see what was there to be seen and in crossing in front of an oncoming vehicle when it was hazardous to do so … . Although we agree with defendant that there are conflicting accounts concerning whether he stopped at the posted stop sign prior to the accident, we conclude that this minor discrepancy does not raise an issue of fact precluding an award of summary judgment in plaintiffs’ favor on the issue of defendant’s negligence because in either scenario defendant was negligent as a matter of law … . Peterson v Ward, 2017 NY Slip Op 09024, Fourth Dept 12-22-17

 

NEGLIGENCE (DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT))/TRAFFIC ACCIDENTS  (DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (DEFENDANT MADE A LEFT TURN IN FRONT OF AN ONCOMING CAR IN VIOLATION OF VEHICLE AND TRAFFIC LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (FOURTH DEPT))

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EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence of corporal punishment was not sufficient to justify a finding of neglect:

 

According to the testimony of the father, he was called into the school by the child’s teachers in March 2014 because the child was misbehaving. When the father stated that he was taking the child home, the child began running around the classroom. The father chased the child around the classroom and, in attempting to grab him, accidentally caught him in the face with his hand, causing the marks. The father further testified, consistent with the child’s statement to the caseworker, that the child sustained a bruise in January 2014 while roughhousing with his siblings.

“[A] finding of neglect requires proof that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired’ as a result of the parent’s failure to exercise a minimum degree of care’ ” … .Although the use of excessive corporal punishment constitutes neglect … , a parent has the right to use reasonable physical force to instill discipline and promote the child’s welfare … . Here, we conclude that petitioner failed to establish that the father intentionally harmed the child or that his conduct was part of a pattern of excessive corporal punishment … , and petitioner thus failed to meet its burden of establishing by a preponderance of the evidence that the child was in imminent danger … . Matter of Damone H., Jr. (Damone H., Sr.), 2017 NY Slip Op 09023, Fourth Dept 12-22-17

FAMILY LAW (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT))/NEGLECT (CORPORAL PUNISHMENT, EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT))/CORPORAL PUNISHMENT (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT))

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SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the separation agreements were unconscionable. Defendant wife was represented by counsel in the divorce, plaintiff husband was not, there was a vast difference in assets, wife’s pensions were not valued, and financial disclosure was not complete. The matter was sent back for new rulings on equitable distribution and maintenance:

 

A separation agreement should be set aside as unconscionable where it is “such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other . . . , the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” … . We note that the unconscionability or inequality of a separation agreement may be the result of overreaching by one party to the detriment of another … .

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Here, at the time the parties entered into the agreements, defendant wife was represented by counsel but plaintiff was not, which, while not dispositive, is a significant factor for us to consider … . Another factor to consider is that the agreements did not make a full disclosure of the finances of the parties … . In particular, defendant, who had a master’s degree in business administration and was a professor at a SUNY college, would receive two pensions upon retirement, neither of which was valued. The separation agreement did not provide for any maintenance for plaintiff despite the gross disparity in incomes and the length of the marriage and, while the modification agreement provided maintenance for plaintiff, it also required plaintiff to transfer his interest in the marital residence to defendant. In opposition to the motion, defendant averred that the parties “wanted an agreement whereby [plaintiff] would keep his income and retirement assets and I would keep mine.” As shown by their statements of net worth, which were prepared after the agreements were executed, plaintiff’s assets totaled approximately $77,000 whereas defendant’s assets, which included the marital residence, totaled approximately $740,000. Based on our consideration of all the factors, we conclude that the agreements here are unconscionable and were the product of overreaching by defendant and thus should be set aside … . Tuzzolino v Tuzzolino, 2017 NY Slip Op 08991, Fourth Dept 12-22-17

 

FAMILY LAW (SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/SEPARATION AGREEMENTS (FAMILY LAW, SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/UNCONSCIONABLE (FAMILY LAW,  MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/DIVORCE (SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))

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POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the police officer did not have the authority to reach inside defendant’s pocket and the People did not demonstrate the defendant’s vehicle was searched pursuant to a valid inventory search. The officer approached the defendant who was sitting in a parked vehicle lacking a valid inspection:

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With respect to the marihuana seized from defendant’s pocket, we agree with defendant that the police officer lacked any basis upon which to search defendant’s person. The police officer observed defendant sitting inside a parked vehicle lacking a valid inspection. The officer approached the vehicle and, upon seeing a kitchen knife on the floorboard of the vehicle, asked defendant to exit the vehicle. Without any further provocation from defendant, the officer conducted a search of defendant’s person, discovering a small amount of marihuana in defendant’s pocket. That search was unlawful for a variety of reasons.

First, the search cannot be justified as a frisk for officer safety inasmuch as there was no evidence that, after defendant exited the vehicle, the officer “reasonably suspected that defendant was armed and posed a threat to [the officer’s] safety”… . Second, even assuming, arguendo, that the officer was entitled to conduct a protective frisk, we conclude that he was not entitled to search defendant’s pockets. “A protective frisk is an intrusion tailored to discover the presence of concealed weapons, usually consisting of a pat-down of a person’s outer clothing . . . [It] should not be extended beyond its purpose of securing the safety of the officer and preventing an escape’ ” … . Where, as here, there is no evidence that the officer believed that the individual’s pockets contained weapons, the search of those pockets is unlawful … . …

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We likewise agree with defendant that the court erred in refusing to suppress the physical evidence found inside the uninspected vehicle inasmuch as the People failed to establish that the purported inventory search was valid (… . Even if we were to conclude that the uninspected vehicle could be impounded and subjected to an inventory search, a questionable proposition at best, the People failed to establish the existence of any departmental policy concerning inventory searches or that the officer properly conducted the search in compliance with established and standardized procedures … . People v Solivan, 2017 NY Slip Op 09021, Fourth Dept 12-22-17

 

CRIMINAL LAW (POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/SEARCH AND SEIZURE (POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/INVENTORY SEARCH   (POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))/STREET STOPS (CRIMINAL LAW, POLICE OFFICER DID NOT HAVE REASON TO REACH INSIDE DEFENDANT’S POCKET DURING A FRISK FOR WEAPONS, THE PEOPLE DID NOT DEMONSTRATE THE INVENTORY SEARCH OF A VEHICLE WHICH LACKED A VALID INSPECTION STICKER WAS PROPER (FOURTH DEPT))

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