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WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES.

The Second Department, reversing Family Court, determined that mother, who had a substantially higher income than father, should be deemed the noncustodial parent because mother and father had equal parenting time. Therefore, father was entitled to child support from mother:

The “custodial parent” within the meaning of the Child Support Standards Act is the parent who has physical custody of the child for the majority of the time … . Where neither parent has the child for a majority of the time, the parent with the higher income, who bears the greater share of the child support obligation, should be deemed the noncustodial parent for the purposes of child support … . Matter of Conway v Gartmond, 2016 NY Slip Op 07319, 2nd Dept 11-9-16

FAMILY LAW (WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES)/CHILD SUPPORT (WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES)/NONCUSTODIAL PARENT (WHEN PARENTS HAVE EQUAL PARENTING TIME, THE PARENT WITH THE HIGHER INCOME SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES)

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DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING PLAINTIFF TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING PLAINTIFF WAS NOT A PARENT FOR THE PURPOSE OF VISITATION.

The Second Department, reversing Family Court, determined defendant mother was judicially estopped from arguing plaintiff was not a parent for the purpose of visitation. Defendant had previously successfully obtain an order requiring plaintiff to pay child support:

The defendant was judicially estopped from arguing that the plaintiff was not a parent for the purpose of visitation. First, by asserting in her child support petition that the plaintiff was chargeable with support for the subject child, the plaintiff assumed the position before the Family Court that the plaintiff was the subject child’s parent, as it is parents who are chargeable with the support of their children (see Family Ct Act § 413[1][a]). Next, based on her assertion that the plaintiff was chargeable with the subject child’s support, the defendant successfully obtained an order compelling the plaintiff to pay child support for the subject child … . Under this order, the plaintiff was required to pay child support for his children, including the subject child. Furthermore, the record does not support the court’s finding that the defendant unequivocally waived the right to child support. Therefore, the defendant is judicially estopped from arguing that the plaintiff is not a parent for the purpose of visitation … . Paese v Paese, 2016 NY Slip Op 07304, 2nd Dept 11-9-16

FAMILY LAW (DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)/VISITATION (DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)/CHILD SUPPORT (DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)/JUDICIAL ESTOPPEL (FAMILY LAW, DEFENDANT MOTHER, WHO SUCCESSFULLY OBTAINED AN ORDER REQUIRING DEFENDANT TO PAY CHILD SUPPORT, WAS JUDICIALLY ESTOPPED FROM ARGUING DEFENDANT WAS NOT A PARENT FOR THE PURPOSE OF VISITATION)

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DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW.

The Second Department determined Supreme Court erred in finding defendant did not have standing to contest the search of a van. The court explained that it could not consider the merits of the suppression motion because the merits were not ruled upon by the court below. The options for handling this scenario were explained in some detail. The court opted to hold the appeal in abeyance and remit the matter for a suppression hearing:

This Court has deemed it appropriate to reverse or modify the judgment of conviction, rather than holding the appeal in abeyance, where no purpose would be served by holding the appeal and directing that a new determination be made. This is the case, for example, where a determination of the alternative issue would not change the ultimate determination of the suppression motion … , or where the trial court has already determined the alternative issue in the defendant’s favor, in which case the issue would, in all likelihood, be decided in the defendant’s favor again, and thus would remain unreviewable after remittal … . However, where, as here, the alternative issue raised by the People on appeal has not been determined by the trial court, and the resolution of that issue could affect the determination of the suppression motion, we deem it appropriate to hold the defendant’s appeal in abeyance and remit the matter for consideration of the alternative issue. People v Chazbani, 2016 NY Slip Op 07337, 2nd Dept 11-9-16

 

CRIMINAL LAW (DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)/APPEALS (CRIMINAL LAW, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)

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COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL.

The Second Department determined plaintiff had stated a cause of action under the “pierce the corporate veil” theory. Weaver was the developer of a construction project and Andrea was the general contractor. Defendant Weinberg was a member of Weaver and a shareholder of Andrea. Plaintiff had obtained a unpaid judgment against Andrea. Plaintiff alleged Weinberg abused the privilege of doing business in corporate form and sought to pierce the corporate veil and hold Weinberg liable for Andrea’s debts. The court noted that, although the contention that New York does not recognize a cause of action for piercing the corporate veil was not raised below, the question could be considered on appeal because it involves a question of law which appears on the record and which could not have been avoided if raised at the proper time:

To survive a motion to dismiss the complaint, a party seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted (1) exercised complete domination over the corporation with respect to the transaction at issue, and (2) through such domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court in equity will intervene … . “Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to [corporate or] LLC formalities, inadequate capitalization, commingling of assets, and the personal use of [corporate or] LLC funds” … .

“Additionally, the corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego” … . A cause of action under the doctrine of piercing the corporate veil is “not required to meet any heightened level of particularity in its allegations … .

Here, the plaintiff adequately pleaded allegations that Weinberg dominated Andrea, and that he engaged in acts amounting to an abuse of the corporate form to perpetrate a wrong or injustice against the plaintiff. In this regard, the plaintiff alleged that Andrea was inadequately capitalized, that Weinberg commingled the assets of Andrea with the assets of Weaver, that Weinberg failed to adhere to corporate formalities with respect to Andrea, that Weinberg kept assets out of Andrea to avoid paying its debts and the judgment to the plaintiff, and that Weinberg used the account of Weaver to partially pay the debts of Andrea to the plaintiff. The plaintiff also sufficiently pleaded allegations that Weaver was the alter ego of Andrea. Olivieri Constr. Corp. v WN Weaver St., LLC, 2016 NY Slip Op 07302, 2nd Dept 11-9-16

 

CORPORATION LAW(COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/PIERCING THE CORPORATE VEIL (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/APPEALS (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)

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COOPERATIVE BOARD’S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE.

The Second Department determined the cooperative board’s parking restriction was a proper exercise of the business judgment rule (and did not constitute a breach of fiduciary duty):

“In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination [s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'”… . “[D]ecision making tainted by discriminatory considerations is not protected by the business judgment rule'” … .

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that the decision to enforce parking rules and prohibit parking in the grass area behind one of the cooperative buildings was protected by the business judgment rule … . In particular, the defendants demonstrated that they were acting in the best interests of the cooperative after making a number of capital improvements that added to the aesthetics and value of the property. Beach Point Partners v Beachcomber, Ltd., 2016 NY Slip Op 07284, 2nd Dept 11-9-16

COOPERATIVES (COOPERATIVE BOARD’S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE)/BUSINESS JUDGMENT RULE (COOPERATIVES, COOPERATIVE BOARD’S PARKING RESTRICTION WAS A PROPER EXERCISE OF THE BUSINESS JUDGMENT RULE)

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AMBIGUOUS TERMS IN CONTRACT NOT CLARIFIED BY PAROL EVIDENCE, TRIABLE ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined the applicable provisions of a construction contract were ambiguous and defendant’s motion for summary judgment should have been denied. The plaintiff installed a sidewalk shed around a school building to facilitate its roof work. A dispute arose whether the construction of the sidewalk shed was included in the contract, or whether it was extra work for which extra compensation was due:

A contractor may properly recover payment for extra work that is not contemplated by the terms of the original agreement, and which is performed at the direction of the defendant … . However, a contractor may not recover for any alleged extra work that was actually covered by the terms of the original contract … . * * *

… [T]he contract provision requiring the plaintiff to install sidewalk shedding “to provide proper protection to the school population, workers and pedestrians” is ambiguous with respect to whether it obligated the plaintiff to install a sidewalk shed around the existing building. Moreover, contrary to the Supreme Court’s conclusion, the provision in the contract providing that the plaintiff must install “sidewalk sheds and/or fences . . . in the most conservative manner” is also ambiguous as to whether the plaintiff was required to install a sidewalk shed around the existing building and is subject to different interpretations. The parol evidence submitted by the plaintiff does not conclusively resolve this ambiguity. Thus, in light of these ambiguities as to whether the contract required the plaintiff to perform the work in question, there are triable issues of fact which preclude a grant of summary judgment to either party… . Arnell Constr. Corp. v New York City Sch. Constr. Auth., 2016 NY Slip Op 07282, 2nd Dept 11-9-16

 

CONTRACT LAW (AMBIGUOUS TERMS IN CONTRACT NOT CLARIFIED BY PAROL EVIDENCE, TRIABLE ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT)

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CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION.

The Second Department determined the complaint against a Chinese national was properly dismissed for lack of jurisdiction. The court explained the law re: (1) the burdens of proof for the motion to dismiss, (2) the procedure when discovery is required to determine jurisdiction, (3) the definition of “domicile” and (4) the nature of business transactions which will provide New York with jurisdiction:

… [T]he plaintiffs failed to make a prima facie showing that the defendant was domiciled in New York at the time the action was commenced in July 2013. Evidence of the defendant’s ownership of a cooperative apartment in Queens is, on its own, insufficient to confer personal jurisdiction over him absent evidence of his intent to make the apartment his “fixed and permanent home” … . The record demonstrated that the defendant resided in Shanghai, China, while his wife and daughter resided in the cooperative apartment in Queens. It was undisputed that the defendant had not even visited New York since March 2013. * * *

The transaction of business is established where it is shown that a ” defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted'”… .

” Purposeful activities are those with which a defendant, through volitional acts, avails [himself or herself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws'” … . A single transaction in New York may suffice to invoke jurisdiction even if the defendant never enters the state, provided that the activity was purposeful and ” there is a substantial relationship between the transaction and the claim asserted'”… .  Indeed, absent ” some articulable nexus'” between a defendant’s purposeful business activities in the state and the plaintiff’s claims, personal jurisdiction pursuant to CPLR 302(a)(1) may not be exercised … .

Here, the sole purposeful activity cited by the plaintiffs in support of their argument that the defendant is subject to personal jurisdiction pursuant to CPLR 302(a)(1) is the employment relationship between Crystal Window and the defendant. However, the alleged wrongdoing upon which the complaint primarily is based occurred during the defendant’s employment with Huai’an Crystal, a Chinese company, prior to any employment with Crystal Window. Chen v Guo Liang Lu, 2016 NY Slip Op 07290, 2nd Dept 10-9-16

 

CIVIL PROCEDURE (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)/JURISDICTION (PERSONAL) (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)

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GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTION AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT.

The Second Department determined a grievance involving a teacher was arbitrable under the collective bargaining agreement (CBA). The grievance was filed by the teachers’ association against the school district regarding the district’s starting a plenary action against a teacher under a faithless servant theory:

Here, the respondent, Locust Valley Teachers’ Association (hereinafter the LVTA), filed a grievance against the petitioner, Locust Valley Central School District (hereinafter the School District), regarding the commencement by the School District of a plenary action against a teacher formerly employed by the School District. The former teacher was a member of the LVTA. The applicable collective bargaining agreement (hereinafter CBA) between the parties provided that either party had the right to submit a grievance to arbitration, where that grievance was not resolved by the School District. The CBA defined a “grievance” as “a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement.” In the plenary action, the School District sought, under a “faithless servant” theory, the forfeiture of all compensation earned by the subject teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher’s plea of guilty to several criminal charges.

The School District has not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance. Further, in light of the fact that the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA, there exists a reasonable relationship between the grievance and the CBA. Therefore, the Supreme Court did not err in finding the grievance to be arbitrable pursuant to the CBA … . Locust Val. Cent. Sch. Dist. v Benstock, 2016 NY Slip Op 07299, 2nd Dept 11-9-16

 

ARBITRATION (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EDUCATION-SCHOOL LAW (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/FAITHLESS SERVANT THEORY (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/TEACHERS (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)

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NONWORKING CLAIMANT SUBJECT TO THE 75% CAP ON WAGE-EARNING CAPACITY IS NOT AUTOMATICALLY ENTITLED TO NO LESS THAN 25% LOSS OF WAGE- EARNING CAPACITY FOR PURPOSES OF DETERMINING THE DURATION OF BENEFITS; HERE A 15% LOSS OF WAGE-EARNING CAPACITY UPHELD.

The Third Department rejected the argument by the permanently disabled claimant that, because of a conflict between two applicable statutes, she could not be deemed to have sustained anything less than a 25% loss of wage-earning capacity. The Third Department determined the two statutory provisions were not in conflict and the evidence supported a 15% loss of wage-earning capacity:

Claimant argues that, because Workers’ Compensation Law § 15 (5-a) limited her wage-earning capacity as a nonworking claimant to no more than 75% of her “former full time actual earnings,” the Board was statutorily prohibited from determining that she had less than a 25% loss of wage-earning capacity under Workers’ Compensation Law § 15 (3) (w). She asserts that Workers’ Compensation Law § 15 (3) (w) (xi) and (xii) are in conflict with Workers’ Compensation Law § 15 (5-a) and that, to reconcile this perceived conflict, we should construe these provisions as applying only to claimants who are employed at the time of classification — i.e., those claimants who are not subject to the 75% restriction imposed by Workers’ Compensation Law § 15 (5-a). * * *

As relevant here, in cases of permanent partial disability that are not amenable to schedule awards, “wage-earning capacity” is used to determine a claimant’s weekly rate of compensation. Specifically, in such cases, a claimant’s rate of compensation is two thirds of the difference between his or her average weekly wage and his or her wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]). Where a claimant is unemployed, wage-earning capacity is fixed by the Board — subject to a 75% cap (see Workers’ Compensation Law § 15 [5-a]). In contrast, “loss of wage-earning capacity,” a term that was added in 2007 as part of a comprehensive reform of the Workers’ Compensation Law (see L 2007, ch 6, § 4), is used at the time of classification to set the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits (see Workers’ Compensation Law § 15 [3] [w]). For instance, where, as here, a claimant is found to have sustained a 15% loss of wage-earning capacity, he or she is entitled to receive benefits for 225 weeks (see Workers’ Compensation Law § 15 [3] [w] [xii]). Matter of Till v Apex Rehabilitation, 2016 NY Slip Op 07247, 3rd Dept 11-3-16

 

WORKERS’ COMPENSATION LAW (NONWORKING CLAIMANT SUBJECT TO THE 75% CAP ON WAGE-EARNING CAPACITY IS NOT AUTOMATICALLY ENTITLED TO NO LESS THAN 25% LOSS OF WAGE- EARNING CAPACITY FOR PURPOSES OF DETERMINING THE DURATION OF BENEFITS)

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VOCATIONAL FACTORS PROPERLY CONSIDERED IN SETTING COMPENSTATION FOR PERMANENTLY DISABLED LABORER.

The Third Department determined the Workers’ Compensation Board properly took into account the claimant’s “vocational factors,” i.e., limited education, language barrier, work history, when setting the appropriate compensation. Claimant suffered a permanent partial disability and had been employed as a landscaper:

Here, … claimant suffered a permanent partial disability, there is no expectation that he will ever return to his former or similar employment as a laborer, and the Board necessarily considered vocational factors when it established his loss of wage-earning capacity. Because the evidence established that claimant did not earn actual wages, the statute authorized the Board to “[fix] in the interest of justice . . . such wage[-]earning capacity as shall be reasonable . . . having due regard to the nature of his injury and his physical impairment” (Workers’ Compensation Law § 15 [5-a]). … [W]e find that the [statute’s] broad discretionary language authorized the Board to consider vocational factors that reflected claimant’s true ability to secure employment, particularly in the absence of evidence to negate claimant’s testimony that his injury contributed to his loss of wage-earning capacity … . Consequently, under the circumstances presented, we perceive no error in the Board’s determination to fix claimant’s wage-earning capacity based on the undisputed evidence of his physical disability and loss of wage-earning capacity resulting from his functional limitations and vocational impediments … . Matter of Rosales v Eugene J. Felice Landscaping, 2016 NY Slip Op 07239, 2nd Dept 11-3-16

WORKERS’ COMPENSATION LAW (VOCATIONAL FACTORS PROPERLY CONSIDERED IN SETTING COMPENSTATION FOR PERMANENTLY DISABLED LABORER)

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