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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS.

The First Department, over an extensive two-justice dissent, determined defendant was entitled to a hearing on his motion to set aside the judgment of conviction based upon ineffective assistance of counsel. Defendant alleged that he wanted to testify but didn’t because the Sandoval hearing was never completed and defense counsel never asked that it be completed. Defendant further alleged defense counsel told defendant not to testify and threatened to leave the case if defendant insisted. Defendant also alleged defense counsel was paid to hire an expert on DNA evidence but never did. Defendant submitted expert opinion evidence that cross-examination of the People’s DNA expert could have been more effective had the defense been advised by a defense expert.  The First Department explained that an inquiry into whether a defendant received effective assistance is not an inquiry into whether the outcome of the trial would have been different absent the mistakes by counsel. The only issue is whether defendant received a fair trial:

It is well established that a defendant who is represented by counsel nevertheless retains authority over certain fundamental decisions regarding the case, including the decision whether to testify in his or her behalf … . The decision to testify in one’s behalf is personal and can be waived only by the defendant, not counsel alone … . Defendant’s affidavit submitted with the 440.10 motion made clear that he informed trial counsel that he wished to testify, depending on the outcome of the Sandoval hearing. In light of this affidavit, a hearing is required to more fully explore the circumstances surrounding trial counsel’s alleged representation to the court that defendant would not be testifying, and whether defendant was aware of, and concurred with, that decision. * * *

The dissent argues that no hearing is necessary because “the alleged deficiencies in trial counsel’s performance . . . could not have affected the result of the trial.” That, however, is not the standard for reviewing claims of ineffective assistance of counsel under the State Constitution. New York “refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance” … . Although whether a defendant would have been acquitted but for counsel’s errors is relevant, a state claim of ineffective assistance “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . “Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial” … . People v Mercado, 2017 NY Slip Op 01439, 1st Dept 2-23-17

 

CRIMINAL LAW (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/ATTORNEYS (CRIMINAL LAW, (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/INEFFECTIVE ASSISTANCE (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)/SET ASIDE CONVICTION, MOTION TO (DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS)

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NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING.

The First Department determined the denial of a civil motion seeking discovery (letters rogatory) oversees which was made in the context of a criminal proceeding could not be the subject of an interlocutory appeal:

In this matter where an indictment has been filed, a criminal trial is pending, and defendants seek information via letters rogatory for use at their criminal trial, the denial of the application for such letters is part of the criminal proceeding, notwithstanding that the application was brought under CPLR 3108 … .

“It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute”  … . The order appealed from is not a disposition listed in CPL 450.10 or 450.15, and is therefore not an appealable paper … . A “defendant may only appeal after conviction” … , and may not obtain an interlocutory appeal by claiming to invoke the court’s civil jurisdiction. People v DePalo, 2017 NY Slip Op 01441, 1st Dept 2-23-17

 

CRIMINAL LAW (NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/APPEALS (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/CIVIL PROCEDURE (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/LETTERS ROGATORY (CRIMINAL LAW, APPEALS, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)

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ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP.

The Third Department determined defendant’s waiver of appeal was inadequate and there was no assurance defendant understood the constitutional rights waived by his guilty plea. The plea was vacated, in the interest of justice, on that ground:

Although defendant’s challenge to the plea was not preserved through an appropriate postallocution motion … , we exercise our interest of justice jurisdiction to reverse the judgment … . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … .

Here, County Court made no effort to explain the consequences of a guilty plea, making only a passing reference to them by asking defendant if anyone was forcing him to give up his “right[] to [a] jury trial” … . The court further failed to establish that defendant had consulted with his counsel about the trial-related rights that he was forfeiting by pleading guilty or the constitutional consequences of a guilty plea, “instead making a vague inquiry into whether defendant had spoken to defense counsel” … or had any questions of his counsel regarding his “rights,” “the plea bargain, the trial and anything else that [was] important to [him]” … . With no affirmative showing on the record that defendant understood and waived his constitutional rights when he entered the guilty plea, the plea was invalid and must be vacated … . People v Herbert, 2017 NY Slip Op 01408, 3rd Dept 2-23-17

CRIMINAL LAW (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)/GUILTY PLEA (ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP)

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DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it was the alter ego of plaintiff’s employer (which would trigger the Worker’s Compensation Law as plaintiff’s sole remedy). Defendant’s summary judgment motion on that ground should have been denied. Plaintiff was injured by a defective floor condition where he worked. He sued the owner of the building and the holder of the lease, Clean Rite Cleaners – Flatbush Avenue, LLC:

At the time of the accident, the plaintiff was employed by nonparty CRC-Management Co., LLC (hereinafter CRC-Management), and, after the accident, he sought Workers’ Compensation benefits from CRC-Management. CRC-Flatbush moved, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff’s causes of action were barred by the exclusive remedy provisions of the Workers’ Compensation Law. Among other things, CRC-Flatbush argued that it was “part of a single integrated entity” along with CRC-Management since they were both subsidiaries of nonparty Clean Rite Centers, LLC. …

… “[A] mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other” … . Here, CRC-Flatbush failed to make a prima facie showing either that it and the plaintiff’s employer, CRC-Management, operated as a single integrated entity, or that either company controlled the day-to-day operations of the other … . Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01350, 2nd Dept 2-22-17

 

WORKER’S COMPENSATION LAW (DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/CORPORATION LAW (WORKER’S COMPENSATION LAE, NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/ALTER EGO (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED; DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, over an extensive two-justice dissent, determined plaintiff’s motion for summary judgment based upon the common law right of sepulcher should have been denied and the defendant’s motion for summary judgment dismissing the cause of action based upon failure to timely perform an autopsy should have been granted. Plaintiffs elected to terminate a pregnancy because genetic testing indicated the fetus could not live. The defendant hospital provided plaintiffs with a burial form and plaintiffs consented to having the hospital bury the fetus. When plaintiffs allegedly were told the sex of the fetus was male (the genetic testing indicated the fetus was female), the plaintiffs asked for an autopsy. The fetus had been misplaced and was ultimately found in a bin with body parts. The autopsy was performed and confirmed the fetus was female. The hospital argued that the right of sepulcher only applied to “bodies” and the fetus, which was less than 20 weeks old, was not a “body.” The Second Department held that the hospital had essentially waived that argument by agreeing to bury the fetus. Although the plaintiffs, by signing the burial form, relinquished their right to prompt possession of the body, the cause of action alleging the mishandling of the remains was viable. The Second Department went on to hold that there was no cause of action for negligent infliction of emotional distress stemming from the delay of an autopsy:

The common-law right of sepulcher “gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and . . . damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … . Here, although the plaintiffs relinquished their right to prompt possession of the fetal remains when Linru Fan executed a written consent form authorizing the Hospital to arrange for the burial, the plaintiffs also alleged that the Hospital violated their right to sepulcher by mishandling the fetal remains … . However, damages attributable to emotional distress caused by the failure to timely perform an autopsy on the fetus are not recoverable … . Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, 2017 NY Slip Op 01405, 2nd Dept 2-22-17

SEPULCHER, RIGHT OF (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)/AUTOPSY (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)

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A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY.

The Second Department, in a decision too complex to fairly summarize here, determined a party’s (Myrtle’s) failure to execute a recorded memorandum referencing a purchase and sale agreement and assignment resulted in the failure to give priority to a claim to the property by a another party to the agreement (All Year):

Real Property Law § 294(2) provides, inter alia, “[i]n lieu of the recording of an executory contract, there may be recorded a memorandum thereof, executed by the parties.” Here, in lieu of recording the purchase and sale agreement and assignment thereof, All Year and Cumberland executed and recorded a memorandum referencing the purchase and sale agreement and the assignment. However, Myrtle, which was a party to both the purchase and sale agreement and the assignment, did not execute the memorandum. As Myrtle did not execute the memorandum, it was improperly recorded in lieu of the purchase and sale agreement and assignment, and its recording did not serve to give All Year’s claim to the property priority over Brookland’s claim. Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 2017 NY Slip Op 01402, 2nd Dept 2-22-17

REAL PROPERTY LAW (A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/RECORDING (REAL PROPERTY LAW, PURCHASE AND SALE AGREEMENT, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/PRIORTY (REAL PROPERTY, RECORDING, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)

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SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND.

The Second Department determined Supreme Court should not have imposed sanctions on defendants in this medical malpractice action. The action was premised on the failure of a suture which had to be repaired by a subsequent surgery. The suture at issue was thrown away at the time of the second surgery. Plaintiff failed to demonstrate the defendants threw away the suture with a culpable state of mind:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind,’ and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . Where evidence has been intentionally or willfully destroyed, its relevance is presumed … . However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party’s claim or defense … . * * *

… Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion to impose sanctions against the defendants for the wilful spoilation and destruction of evidence, as the plaintiff failed to demonstrate that the defendants were obligated to preserve the broken suture at the time of its destruction, that the suture was destroyed with a “culpable state of mind,” and/or that the destroyed suture was relevant to the plaintiff’s claim … . In any event, the plaintiff failed to establish that the defendants were on notice that the suture might be needed for future litigation … . Golan v North Shore-Long Is. Jewish Health Sys., Inc., 2017 NY Slip Op 01342, 2nd Dept 2-22-17

 

NEGLIGENCE (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/MEDICAL MALPRACTICE (EVIDENCE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/EVIDENCE (MEDICAL MALPRACTICE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/SPOLIATION (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)

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PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT.

The Second Department determined plaintiff’s reckless actions severed any connection between any alleged negligence and the accident. Plaintiff was hit by a train while walking in an area to which she was not allowed access:

… [T]he defendants … demonstrated, as a matter of law, that the plaintiff’s conduct, under the circumstances of this case, constituted an intervening and superseding cause which absolved the defendants of liability … . The defendants’ submissions demonstrated that the then-17-year-old plaintiff circumvented various barriers to access an elevated track area, proceeded to walk alongside the track area, and then attempted to cross a train bridge that had limited clearance and no protective railings or fencing. In doing so, she acted with reckless and extraordinary conduct, which, as a matter of law, constituted an intervening and superseding event which severs any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendants … . Weimar v Metropolitan Transp. Auth., 2017 NY Slip Op 01403, 2nd Dept 2-22-17

NEGLIGENCE (PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)/PROXIMATE CAUSE (NEGLIGENCE, PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)/INTERVENING AND SUPERSEDING CAUSE (NEGLIGENCE, PLAINTIFF’S RECKLESS ACTIONS SEVERED ANY CONNECTION BETWEEN ANY ALLEGED NEGLIGENCE AND THE ACCIDENT)

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KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate, as a matter of law, the low table over which plaintiff tripped and fell was an open and obvious condition:

The plaintiff Concetta Dalton (hereinafter the plaintiff) was attending a wedding reception at the defendants’ catering hall and allegedly was injured when she tripped over a knee-high table in the lobby of the catering hall and fell. The plaintiff was walking through the lobby area, where there was a crowd of people, to reach the main dining area when the accident occurred. The plaintiff testified at her deposition that she did not see the table before she fell. …

Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury … . A condition that is generally apparent “to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . The determination of “whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances” … . Dalton v North Ritz Club, 2017 NY Slip Op 01333, 2nd Dept 2-22-17

 

NEGLIGENCE (KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)/SLIP AND FALL (KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)/OPEN AND OBVIOUS CONDITION (SLIP AND FALL, KNEE HIGH TABLE, UNDER THE CIRCUMSTANCES, WAS NOT AN OPEN AND OBVIOUS DEFECT AS A MATTER OF LAW)

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ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE.

The Second Department, in a decision covering many equitable distribution issues not summarized here, determined any award of college expenses for a 16-year-old child was premature. No evidence was presented concerning the child’s academic wishes or plans:

… [T]he court did not err in declining to direct the defendant to contribute his pro rata share of the parties’ unemancipated child’s future college expenses. “The court may direct a parent to contribute to a child’s college education pursuant to Domestic Relations Law § 240(1-b)(c)(7)” … . “However, when college is several years away, and no evidence is presented as to the child’s academic interests, ability, possible choice of college, or what his or her expenses might be, a directive compelling [a parent] to pay for those expenses is premature and not supported by the evidence” … . At the time of the trial, the parties’ unemancipated child was 16 years old and was entering his junior year of high school. There was no evidence presented as to his academic interests, his possible choice of college, or what the expenses of college might be. Accordingly, the plaintiff’s request that the court direct the defendant to contribute his pro rata share of the parties’ unemancipated child’s future college expenses was premature … . Repetti v Repetti, 2017 NY Slip Op 01396, 2nd Dept 2-22-17

FAMILY LAW (EQUITABLE DISTRIBUTION, ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE)/EQUITABLE DISTRIBUTION (COLLEGE EXPENSES, (EQUITABLE DISTRIBUTION, ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE)/COLLEGE EXPENSES (FAMILY LAW, EQUITABLE DISTRIBUTION, ABSENT PROOF OF 16-YEAR-OLD CHILD’S COLLEGE PLANS, ANY AWARD OF COLLEGE EXPENSES WOULD BE PREMATURE)

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