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BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE.

The Second Department determined the bank’s motion for summary judgment was properly denied because the bank did not submit sufficient proof of possession of the note and mortgage at the time the foreclosure action was commenced. The proof did not meet the requirements of the business records exception to the hearsay rule. That affiant did not attest she was personally familiar with the plaintiff-bank’s record-keeping practices and procedures:

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Angela Frye, Vice President of Loan Documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicer of the defendant’s loan on behalf of the plaintiff. Frye averred, in relevant part, that she “reviewed the books and records regularly maintained by Wells Fargo in the ordinary course of its business as servicer of Defendant’s loan for and on behalf of the Trust,” and that “Wells Fargo’s regularly maintained records reflect that both the original Note … and the Mortgage were physically delivered to the Trust prior to the commencement of this action.” The plaintiff failed to demonstrate that the records relied upon by Frye were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Frye, an employee of Wells Fargo, did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures … . Deutsche Bank Natl. Trust Co. v Brewton, 2016 NY Slip Op 05906, 2nd Dept 8-31-16

FORECLOSURE (BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE)/EVIDENCE (FORECLOSURE, BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE)/BUSINESS RECORDS (FORECLOSURE, BANK’S PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE)

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CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS.

The Second Department determined, where father was ordered to procure life insurance to cover the children’s support and education costs, and where father died without complying with the order, a constructive trust on the proceeds of other life insurance policies was properly imposed in an amount sufficient to cover father’s support and education-expense obligations:

… [T]he Legislature has provided that a court may require a payor spouse to maintain life insurance to prevent that financial injury: “The court may also order a party to purchase, maintain or assign a policy of accident insurance or insurance on the life of either spouse, and to designate in the case of life insurance, either spouse or children of the marriage, or in the case of accident insurance, the insured spouse as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of the spouse’s duty to provide maintenance, child support or a distributive award” (Domestic Relations Law § 236[B][8][a]). The purpose of this provision is not to provide an alternative award of maintenance or child support, but solely to ensure that the spouse or children will receive the economic support for payments that would have been due had the payor spouse survived … . Accordingly, where life insurance is appropriate, it should be set in an amount sufficient to achieve that purpose … . It should not be in an amount that would provide a windfall … . Mayer v Mayer, 2016 NY Slip Op 05911, 2nd Dept 8-31-16

FAMILY LAW (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)/INSURANCE LAW (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)/CHILD SUPPORT (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)/TRUSTS AND ESTATES (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)

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UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED.

The Second Department, reversing defendant’s conviction, determined, under state constitutional standards, the warrantless search of a messenger bag on defendant’s person at the time of his arrest was not justified by exigent circumstances. The court also noted that the prosecutor’s characterizing the defense as “beyond absurd” and comments upon defendant’s pre-arrest silence were improper:

Here, the Supreme Court concluded that the defendant’s messenger bag was lawfully searched incident to his arrest for burglary. However, the proof adduced at the suppression hearing failed to establish the presence of exigent circumstances justifying the warrantless search. Initially, there was insufficient evidence to support a finding of exigent circumstances relating to the safety of the public and the arresting officer … . Although the police officer who testified at the suppression hearing stated that he had responded to the scene after receiving a report of an individual climbing into a building through a rear window, there was no indication that the individual was armed … . Nor did the officer testify as to any circumstances indicating the presence of a weapon … . Furthermore, the police officer did not express any concerns about his own safety, or the safety of the public, and the circumstances of the defendant’s arrest did not serve to establish an objectively reasonable inference of police apprehension. People v Anderson, 2016 NY Slip Op 05927, 2nd Dept 8-31-16

CRIMINAL LAW (UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/SEARCHES AND SEIZURES (UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/EXIGENT CIRCUMSTANCES (CRIMINAL LAW, UNDER STATE CONSTITUTIONAL STANDARDS, THE WARRANTLESS SEARCH OF A MESSENGER BAG AT THE TIME OF DEFENDANT’S ARREST WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTIONS REVERSED)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S INFLAMMATORY REMARKS AND REFERENCE TO DEFENDANT’S PRE-ARREST SILENCE IMPROPER)

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ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES.

The Second Department determined plaintiffs’ action seeking reformation of a note and mortgage was properly dismissed under the doctrine of laches:

…[W]hile the plaintiffs may have, at one point, had a cause of action for reformation of the note and mortgage on the basis of mutual mistake … , the Supreme Court properly determined that such a cause of action is barred by the plaintiffs’ laches in asserting a right to reformation. ” The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party'” … . Prejudice may be demonstrated “by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay” … . The plaintiffs unreasonably delayed in asserting a right to reformation of the note and mortgage for almost six years, during which time they made payments in accordance with the terms of the note and mortgage. Further, the defendant would be prejudiced in defending the action at this time by the loss of evidence resulting from her husband’s death in 2012, approximately 4½ years after the note and mortgage were executed … . Diecidue v Russo, 2016 NY Slip Op 05907, 2nd Dept 8-31-16

 

CONTRACT LAW (ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES)/CIVIL PROCEDURE (ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES)/LACHES (ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES)

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PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, overruling a 25-year-old precedent, determined a partner in an unmarried couple who has no biological or adoptive relationship with a child can be the child's parent entitled to custody or visitation:

These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]) — namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's “parent” for purposes of standing to seek custody or visitation under Domestic Relations Law § 70 (a), notwithstanding their “established relationship with the child” (77 NY2d at 655). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a). We agree that, in light of more recently delineated legal principles, the definition of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70. * * *

Petitioners in the two cases before us have alleged that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. We hold that these allegations, if proven by clear and convincing evidence, are sufficient to establish standing. Because we necessarily decide these cases based on the facts presented to us, it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody. Matter of Brooke S.B. v Elizabeth A.C.C., 2016 NY Slip Op 05903, CtApp 8-30-16

FAMILY LAW (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)/CUSTODY (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)/VISITATION (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)/PARENT (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)

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EXOTIC DANCERS WERE EMPLOYEES.

The Third Department determined exotic dancers were employees entitled to unemployment insurance benefits:

The record reflects that the club would evaluate prospective dancers and instruct those who were inexperienced to observe a more experienced dancer. If the club determined that a dancer was “unappealing,” the dancer would not be permitted to continue to perform. Additionally, the dancers were required to present proof of legal age and citizenship or their services would not be engaged. The club charged patrons an admission fee and set the prices that the dancers would charge patrons for private one-on-one dances, with the club retaining a percentage thereof, and patrons would pay the club’s bartender for the private dances. While the dancers could set their own schedules, the club would compile a nightly list of the dancers scheduled to perform and post it on its website. Finally, the club provided the stage, private dance rooms, lighting and sound equipment, while the dancers supplied their own costumes and music. Matter of Greystoke Indus. LLC (Commissioner of Labor), 2016 NY Slip Op 05890, 3rd Dept 8-25-16

 

UNEMPLOYMENT INSURANCE (EXOTIC DANCERS WERE EMPLOYEES)

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CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM.

The Third Department determined claimant, who was found to have a work-related permanent partial disability, did not demonstrate a sufficient attachment to the labor market to warrant benefits. Claimant’s only attempt to go back to work was enrollment in an unfunded training program. The court sent the “total industrial disability” claim back because the Workers’ Compensation Law Judge and the Board did not cite any medical evidence in support of the denial of the “total industrial disability” claim:

Although the Board has found that a claimant remains attached to the labor market when it is shown that he or she is actively participating in a job location service or a Board-approved vocational rehabilitation … , we find that the Board’s determination here — that by relying solely on an unfunded training program, claimant was not actively participating in vocational rehabilitation and had voluntarily removed himself from the labor market — is supported by substantial evidence and will not be disturbed … .

… [A] “claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment” … . While the Board’s determination regarding a total industrial disability will be upheld if supported by substantial evidence ,,, , “Workers’ Compensation Law § 23 requires the Board to include in its decision a statement of facts which formed the basis of its action on the issues raised” … .

Here, the WCLJ found a lack of total industrial disability based solely upon claimant’s failure to seek employment after his accident, with no discussion of the relevant factors relating to a total industrial disability. Matter of Walker v Darcon Constr. Co., 2016 NY Slip Op 05888, 3rd Dept 8-25-16

 

WORKERS’ COMPENSATION LAW (CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM)

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MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED.

The First Department, over a dissent, determined the Public Administrator’s late motion (CPLR 1021) for substitution (for the deceased plaintiff) in a medical malpractice action was properly granted. There was a delay of more than one year after letters testamentary were issued before substitution was sought. The delay was essentially caused by law office failure. With respect to a reasonable excuse for the delay, the court wrote:

… [T]he record shows that there was a dispute between two of [the deceased’s] children as to who would administer the estate, and that the Public Administrator’s counsel was on maternity leave for five months. In addition, in this case, inadvertent errors in drafting the agreement to retain counsel accounted for some of the delay. Thus, … there are circumstances present that “adequately explain[] the delay in issue” … . Public Adm’r, as Adm’r of the Estate of Ronald Simpson v Levine, 2016 NY Slip Op 05896, 1st Dept 8-25-16

 

TRUSTS AND ESTATES (MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)/CIVIL PROCEDURE (TRUSTS AND ESTATES, MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)

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POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT.

The Third Department determined the police officer’s slip and fall on a wet stair was not an accident entitling him to accidental disability retirement benefits:

Petitioner’s search of the residence following the burglary was a part of his routine duties as a police officer. He acknowledged that it was lightly raining when he conducted the search and, although he did not see water pooling on the stairs, he believed that they were wet. He stated that he did not realize that the stairs were slippery until his foot slipped on the top stair. Notwithstanding this, petitioner could have reasonably anticipated the slippery condition of the stairs under the circumstances presented … . Matter of Magistro v DiNapoli, 2016 NY Slip Op 05893, 3rd Dept 8-25-16

RETIREMENT AND SOCIAL SECURITY LAW (POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)

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HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED.

The Third Department annulled the determination and sent the matter back for a new hearing because the hearing officer applied the wrong legal standard. The matter concerned a police officer seeking accidental disability retirement benefits:

… [T]he Hearing Officer applied the incorrect legal standard in rendering her decision. Specifically, the Hearing Officer confined her analysis to whether the initial determination was supported by substantial evidence, rather than undertaking a “‘redetermination'” and exercising “‘the same powers upon such hearing as upon the original application'” … . As this Court recently noted in Matter of DeMaio v DiNapoli (137 AD3d 1545, 1545-1546 [2016]), such deficiency constitutes an error of law requiring annulment of the determination. Matter of Bodenmiller v DiNapoli, 2016 NY Slip Op 05894, 3rd Dept 8-25-16

RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICERS,  HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)

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