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FAIR MARKET RENT APPEAL PROPERLY DISMISSED.

The First Department, in a full-fledged opinion by Justice Gische, affirmed the dismissal of an Article 78 petition seeking a ruling on the status of petitioners’ apartment and the legality of the rent:

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The disputes before us arise from the Fair Market Rent Appeal (FMRA) petitioners filed with respondent New York State Division of Housing and Community Renewal (DHCR), implicating both the regulatory status of their apartment and the legality of the rent they were charged from the time they first took occupancy in 2010.

The DHCR decision being challenged in this article 78 proceeding denied the FMRA as untimely because it was filed more than four years after the apartment was no longer subject to the rent control laws following the death of the previous tenant in 2004. DHCR rejected petitioners’ contention that the applicable statute of limitations should be disregarded because the owner had engaged in fraud. DHCR also rejected petitioners’ claim that the owner’s late notices and/or registrations had extended the time period within which petitioners could file an FMRA challenging the owner’s efforts to set an initial rent following the apartment’s removal from rent control. Finally, on the merits, DHCR concluded that petitioners were not entitled to either a rent-regulated apartment or regulated rent because in 2010, when they first took occupancy, the apartment was no longer receiving any J-51 tax benefits and had become vacant at a time when the legal vacancy rent clearly exceeded $2,000 per month, an amount sufficient to make it high-rent/vacancy, “luxury” decontrolled … . Matter of Park v New York State Div. of Hous. & Community Renewal, 1st Dept 4-6-17

 

LANDLORD-TENANT (FAIR MARKET RENT APPEAL PROPERLY DISMISSED)/MUNICIPAL LAW (NYC, FAIR MARKET RENT APPEAL PROPERLY DISMISSED)/FAIR MARKET RENTAL APPEAL (NYC, LANDLORD-TENANT, FAIR MARKET RENT APPEAL PROPERLY DISMISSED)

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RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT IN THIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED.

The Third Department vacated Family Court’s order of disposition in the PINS matter finding that respondent had violated the terms of his probation. Respondent was never informed of his right to remain silent:

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“Family Court Act § 741 (a) requires that at a respondent’s initial appearance in a proceeding and at the commencement of any hearing under Family Court Act article 7, the respondent and his or her parent or other person legally responsible for his or her care be advised of the respondent’s right to remain silent” … . … Respondent … argues that Family Court did not comply with Family Ct Act § 741 in this proceeding, … and our review confirms that Family Court failed to apprise him of his right to remain silent at either the initial appearance or fact-finding hearing. As a result, the appealed-from order of disposition must be vacated … . Matter of Daniel XX., 2017 NY Slip Op 02717, 3rd Dept 4-6-17

FAMILY LAW (RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT INT HIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED)/PINS (RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT INT HIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED)

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CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT.

The First Department, over a two-justice dissent, determined that the child support provisions of a stipulation of settlement in this divorce action should not be enforced because the children’s right to child support was jeopardized. Because the stipulation put a cap on father’s child support obligations, it was possible payment of room and board (college) for one sibling could exceed the cap leaving the other siblings without support:

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“[T]he parties cannot contract away the duty of child support. Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children’s rights are involved the contract yields to the welfare of the children. The duty of a parent to support his or her child shall not be eliminated or diminished by the terms of a separation agreement, nor can it be abrogated by contract” … .

The agreement here violates this rule. The credit sought by the father takes away that portion of child support intended for the welfare of the other two children. Taken to its logical end, the agreement threatens to completely deprive the other children of any support whatsoever, if monthly room and board costs for one child were to exceed $2,500. Keller-Goldman v Goldman, 2017 NY Slip Op 02723, 1st Dept 4-6-17

 

FAMILY LAW (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/CONTRACT LAW (STIPULATION OF SETTLEMENT, DIVORCE, CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/CHILD SUPPORT (STIPULATION OF SETTLEMENT, CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/STIPULATION OF SETTLEMENT (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/DIVORCE  (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)

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DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING.

The Third Department determined Family Court should not have dismissed the paternity petition based solely on the presumption of legitimacy and should have held a best interests hearing:

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We agree with petitioner that, as he made the requisite threshold showing of “a nonfrivolous controversy as to paternity” … , his request for genetic testing should not have been denied in the absence of a best interests finding.

In enacting the statutory provisions, the Legislature plainly anticipated that cases involving the presumption of legitimacy may present themselves in which, based upon all of the circumstances, it will not be in a child’s best interests to order genetic testing… . Although respondents ask us to find that this is such a case, we are unable to exercise our broad power of review to render the best interests determination upon the present record. The limited testimony that was taken at the hearing failed to address many of the factors that have been recognized in similar proceedings as relevant to the issue of the child’s best interests. These include such factors as the child’s interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing … . * * *

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Accordingly, the matter must be remitted for a hearing and a determination as to whether, based upon all of the circumstances, including the presumption of legitimacy, genetic testing would be in the child’s best interests … . Matter of Mario WW. v Kristin XX., 2017 NY Slip Op 02715, 3rd Dept 4-6-17

 

FAMILY LAW (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/PATERNITY (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/LEGITIMACY, PRESUMPTION OF  (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)

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GRANDMOTHER DID NOT DEMONSTRATE A PROLONGED SEPARATION OF THE CHILD FROM MOTHER OR THE MOTHER’S RELINQUISHMENT OF CONTROL AND CARE, CUSTODY SHOULD NOT HAVE BEEN AWARDED TO GRANDMOTHER.

The Third Department, reversing Family Court, determined grandmother (petitioner) did not demonstrate extraordinary circumstances justifying the award of custody of the child to her. Despite mother’s move to Florida while the child remained with grandmother, the proof did not demonstrate either a prolonged separation from mother or mother’s relinquishment of care and control. The decision includes a detailed explanation of the relevant law:

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While petitioner demonstrated that the child continuously resided with her for an 11-month period following the mother’s move to Florida, she failed to proffer sufficient evidence to establish that this was a prolonged separation of the mother and the child during which the mother voluntarily relinquished care and control of the child to her. Indeed, petitioner’s testimony demonstrated that the mother maintained consistent contact with the child throughout her 11-month residence in Florida. In particular, petitioner stated that the mother regularly called the child, visited the child over Christmas and paid for petitioner and the child to fly to Florida over the child’s April vacation.

With respect to voluntary relinquishment, petitioner merely stated that she and the mother had discussed the mother’s move to Florida, but had never discussed whether the mother intended the child to move with her. In stark contrast, the mother testified that, prior to moving, she and petitioner had a discussion about the child remaining in New York only until such time as she had secured employment and prepared suitable living arrangements for herself and the child in Florida. Further, the mother testified that, after she was established in Florida, she only allowed the child to remain in New York because the child had asked to stay through the end of the school year. Despite that Family Court did not make any express credibility determinations resolving the conflicting testimony of petitioner and the mother, this Court’s fact-finding authority is as broad as that of Family Court … . In an exercise of that broad fact-finding authority, we find the mother’s account, which demonstrates that she did not intend to cede care and control of the child to petitioner, to be the more credible one.

Moreover, petitioner offered little to no evidence as to her role, if any, in making important decisions affecting the child’s life. Matter of Donna SS. v Amy TT., 2017 NY Slip Op 02710, 3rd Dept 4-6-17

 

FAMILY LAW (GRANDMOTHER DID NOT DEMONSTRATE A PROLONGED SEPARATION OF THE CHILD FROM MOTHER OR THE MOTHER’S RELINQUISHMENT OF CONTROL AND CARE, CUSTODY SHOULD NOT HAVE BEEN AWARDED TO GRANDMOTHER)/CUSTODY (GRANDMOTHER DID NOT DEMONSTRATE A PROLONGED SEPARATION OF THE CHILD FROM MOTHER OR THE MOTHER’S RELINQUISHMENT OF CONTROL AND CARE, CUSTODY SHOULD NOT HAVE BEEN AWARDED TO GRANDMOTHER)

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SUNY POTSDAM’S SEXUAL MISCONDUCT DETERMINATION ANNULLED, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, IMPOSITION OF A HARSHER PENALTY AFTER STUDENT’S APPEAL CRITICIZED.

The Third Department, hearing an Article 78 petition, over an extensive two-justice dissent, annulled the determination of SUNY Postdam which found student petitioner guilty of sexual misconduct and expelled him. The court noted its discomfort with several procedural issues and with the punishment imposed. The Third Department held that the determination was not supported by substantial evidence:

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The complainant’s account was set forth by others who had conversed with her, with the Hearing Board considering written notes prepared by respondent Annette Robbins, SUNY’s director of student conduct and community standards, and the hearing testimony of a campus police officer. * * *

… [H]earsay must be “sufficiently relevant and probative [if it is] to constitute substantial evidence” … and, “when the hearsay evidence is seriously controverted, common sense and elemental fairness suggest that it may not constitute the substantial evidence necessary to support the [challenged] determination” … .

Petitioner testified at the hearing and, while the broad contours of his account matched those of the complainant, their accounts differed on the critical issue of consent. * * *

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… [W]e feel the need to comment on the circumstances leading to its imposition. Upon petitioner’s appeal from the decision of the Hearing Board, the Appellate Board, sua sponte and without any explanation, recommended enhancing the penalty to expulsion. …  While nothing in the student code of conduct expressly prohibits the Appellate Board from recommending, and SUNY’s president from ultimately imposing, a more severe sanction upon a disciplined student’s appeal, nor does the student code of conduct explicitly advise an appealing student that such a consequence may inure as a result of an appeal. We are troubled by the absence of any such clear articulation that an enhanced penalty may result from a student’s choice to appeal the underlying determination and believe that, in this context, fairness warrants a clear and conspicuous advisement to that effect. Matter of Haug v State Univ. of N.Y. At Potsdam, 2017 NY Slip Op 02708, 3rd Dept 4-6-17

 

EDUCATION-SCHOOL LAW (SUNY POTSDAM’S SEXUAL MISCONDUCT DETERMINATION ANNULLED, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, IMPOSITION OF A HARSHER PENALTY AFTER STUDENT’S APPEAL CRITICIZED)/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, SUNY POTSDAM’S SEXUAL MISCONDUCT DETERMINATION ANNULLED, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, IMPOSITION OF A HARSHER PENALTY AFTER STUDENT’S APPEAL CRITICIZED)/EVIDENCE (EDUCATION-SCHOOL LAW, ADMINISTRATIVE LAW,  (SUNY POTSDAM’S SEXUAL MISCONDUCT DETERMINATION ANNULLED, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, IMPOSITION OF A HARSHER PENALTY AFTER STUDENT’S APPEAL CRITICIZED)/COLLEGES AND UNIVERSITIES (MISCONDUCT, SUNY POTSDAM’S SEXUAL MISCONDUCT DETERMINATION ANNULLED, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, IMPOSITION OF A HARSHER PENALTY AFTER STUDENT’S APPEAL CRITICIZED)/HEARSAY (EDUCATION-SCHOOL LAW, ADMINISTRATIVE LAW, SUNY POTSDAM’S SEXUAL MISCONDUCT DETERMINATION ANNULLED, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, IMPOSITION OF A HARSHER PENALTY AFTER STUDENT’S APPEAL CRITICIZED)

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DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD.

The Third Department determined a hearing should have been held on defendant’s motion to set aside her conviction after trial on ineffective assistance grounds. Defendant argued that had she known she could not be deported based upon a guilty plea she would not have gone to trial and thereby been subject to a longer sentence:

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Defendant maintains that, had counsel properly determined her immigration status during the course of her representation, she would likely have entered a guilty plea. She would have thus been exposed to less prison time than she received after trial, much like that of her codefendant. We note that miscommunications in matters such as this have provided a basis for finding that a defendant was denied the effective assistance of counsel … . People v Monterio, 2017 NY Slip Op 02693, 3rd Dept 4-6-17

CRIMINAL LAW (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/ATTORNEYS (CRIMINAL LAW, DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/INEFFECTIVE ASSISTANCE (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)/SET ASIDE CONVICTION, MOTION TO  (DEFENDANT ARGUED HAD SHE BEEN INFORMED DEPORTATION WAS NOT AN ISSUE SHE WOULD HAVE PLED GUILTY AND THEREBY AVOIDED THE LONGER SENTENCE IMPOSED AFTER TRIAL, HEARING ON MOTION TO SET ASIDE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD)

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COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT.

The Third Department determined County Court should not have allowed the People to amend a conspiracy count which did not charge the commission of an overt act:

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Given that “[a]n indictment may not be amended in any respect . . . for the purpose of curing: (a) [a] failure . . . to charge or state an offense; or (b) “[l]egal insufficiency of the factual allegations” (CPL 200.70 [2]), County Court had no authority to grant the People’s motion to amend the indictment to allege an overt act. Moreover, the People’s contention that defendant consented to the amendment is directly contradicted by the fact that defendant specifically argued that the proper remedy for the People’s failure was dismissal of count 2 of the indictment. Accordingly, as count 2 was jurisdictionally defective and not subject to amendment, we reverse the conviction for conspiracy in the fourth degree and the sentence imposed thereon … . People v Placido, 2017 NY Slip Op 02694, 3rd Dept 4-6-17

CRIMINAL LAW (COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT)/INDICTMENT, AMENDMENT OF (COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT)/CONSPIRACY (CRIMINAL LAW, COUNTY COURT DID NOT HAVE THE AUTHORITY TO ALLOW PEOPLE TO AMEND A DEFECTIVE CONSPIRACY COUNT BY ADDING AN ALLEGED OVERT ACT)

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RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY.

The Third Department, reversing defendant’s conviction, determined the facts presented the rare scenario that required the court’s inquiry into whether defendant waived his right to testify. After proof had closed, the defendant made it clear that he wanted to testify and that he and his attorney did not agree on the question:

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Defendant’s request to testify, coupled with his statements that he and defense counsel had disagreed on the issue, gave rise to one of those rare circumstances in which County Court was required to engage in a direct colloquy with defendant so as to discern whether he had been advised that the decision to testify ultimately belonged to him and whether, at the time that the defense rested, defendant’s failure to testify had been a knowing, voluntary and intelligent waiver of that right … . However, County Court failed to engage in the required inquiry so as to ensure that defendant’s constitutional right to testify was protected. While County Court asked whether there was an application to reopen the proof and indicated that it would consider such a request, it directed that question only to defense counsel, even in the face of defendant’s repeated statements that he and defense counsel had differing opinions on the matter. By directing its question solely to defense counsel, County Court demonstrated an apparent misapprehension of longstanding precedent holding that a represented defendant has final decision-making authority over the decision to testify … . People v Morgan, 2017 NY Slip Op 02692, 3rd Dept 4-6-17

CRIMINAL LAW (RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)/TESTIFY, RIGHT TO (CRIMINAL LAW, RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)

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AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS.

The Third Department determined plaintiff could not sue on invoices submitted for payment (which was refused) while plaintiff was in bankruptcy proceedings. Causes of action not listed in the bankruptcy proceedings cannot be sued upon after termination of the bankruptcy proceedings:

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“Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including a cause of action, vests in the bankruptcy estate” … . As such, a debtor’s failure to list a legal claim as an asset in its bankruptcy proceeding precludes the debtor from pursuing such claim on its own behalf inasmuch as the claim remains the property of the bankruptcy estate … . “The only property that may revest in the debtor in its individual capacity at the conclusion of the proceeding is property that was dealt with in the bankruptcy or abandoned” … . …

… [T]he claims asserted by plaintiff … accrued prior to the termination of the bankruptcy proceeding … . [T]he omission of these claims from the … schedule of assets in the bankruptcy proceeding precludes plaintiff from pursuing them on its own behalf because they were not “dealt with” in such proceeding … . Lightning Capital Holdings LLC v Erie Painting & Maintenance, Inc., 2017 NY Slip Op 02716, 3rd Dept 4-6-17

 

CONTRACT LAW (AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS)/BANKRUPTCY (AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS)

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