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Statutory and Due-Process Criteria for Long-Arm Jurisdiction Over a Nondomiciliary Defendant Described

The Third Department determined Supreme Court properly exercised jurisdiction over defendant under the long-arm statute and under federal due process principles:

In deciding whether an action may be maintained in New York against a nondomiciliary defendant, the court must first determine whether jurisdiction exists under New York’s long-arm statute (see CPLR 302) based upon the defendant’s contacts with this state; and, if it does, the court then determines “whether the exercise of such jurisdiction comports with due process” … . The ultimate burden is on the plaintiff to demonstrate that such requirements have been met … .

Here, plaintiffs assert that defendant’s conduct falls within the provisions of CPLR 302 (a) (3) (ii), which confers jurisdiction when a defendant commits a tortious act outside New York that causes injury to a person or property within the state and the defendant “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce” … . *  *  *

Based on the record before us, we likewise find that the exercise of jurisdiction over defendant is compatible with federal due process standards. Generally, “a State may constitutionally exercise jurisdiction over non-domiciliary defendants, provided they had certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice” … . The relevant inquiry is whether a defendant “purposefully avai[led] itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws” … . Under the circumstances here, inasmuch as defendant targeted New York consumers through a network of distributors that rendered it likely that its products would be sold in New York, “it is not unreasonable to subject it to suit in [this state] if its allegedly defective merchandise has . . . been the source of injury to [a New York resident]” … . Darrow v Hectronic Deutschland, 2014 NY Slip Op 05239, 3rd Dept 7-10-14

 

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Where There Has Been a Failure of a Material Condition of a Judicial Instrument of Surrender (of Guardianship and Custody of a Child), the Parent May Bring an Action to Revoke the Surrender Instrument

The Third Department, in a full-fledged opinion by Justice Devine, determined, where a parent agrees to surrender guardianship and custody of a child pursuant to a judicial instrument of surrender, a substantial failure of a material condition of the instrument allows the parent to bring an action to revoke the instrument.  In this case the persons specified in the surrender would not adopt the child:

In Matter of Christopher F. (supra), we were presented with a biological parent’s application to revoke a judicial instrument of surrender. We concluded that, although no procedures beyond notification of the parent were set forth in the statute at that time (see Social Services Law § 383-c [6] [former (c)], as added by L 1990, ch 479, § 2), “based upon our common-sense interpretation of the applicable statutory framework,” the failure of the provision of the surrender instrument conditioning the biological parent’s surrender on adoption of the child by the person specified in the surrender “permitted [the biological parent] to revoke her consent to the adoption” … . Accordingly, we granted the parent’s application for revocation of the judicial surrender. “‘The Legislature is . . . presumed to be aware of the decisional and statute law in existence at the time of an enactment'” … . Since the subsequent statutory amendments did nothing to abrogate or replace the relevant portions of our holding in Matter of Christopher F. (260 AD2d at 99-101), we conclude that, when there has been a substantial failure of a material condition of a judicial instrument of surrender, the procedure we endorsed in Matter of Christopher F. (supra) remains the appropriate procedure. In such a circumstance, the surrendering parent may bring an application before the court — either by petition or by motion — for revocation of the instrument (see id. at 101). Matter of Bentley XX, 2014 NY Slip Op 05222, 3rd Dept 7-10-14

 

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Substantial Evidence Supported Finding that Allowing a Child to Wander Away Near a Four-Lane Highway Constituted Maltreatment

The Third Department determined the Commissioner of Children and Family Services properly denied a petition to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged.  Petitioner called law enforcement because her grandchild had wandered away from her front yard and was found unharmed about 200 yards away.  There was no fence and the home faced a four-lane highway:

Substantial evidence supports the finding of maltreatment. In order to establish maltreatment, the agency was required “to demonstrate by a fair preponderance of the evidence that ‘the child’s physical, mental or emotional condition ha[d] been impaired or [was] in imminent danger of becoming impaired as a result of the [caregiver’s] failure to exercise a minimum degree of care'” in providing the child with appropriate supervision … . Upon review of such an administrative determination, “this Court’s inquiry is limited to whether the decision is rational and supported by substantial evidence” … . A determination is supported by substantial evidence “when reasonable minds could adequately accept the conclusion or ultimate fact based on the relevant proof” … .

Although petitioner’s home is at the end of a dead-end street, testimony by respondent Michelle Kelley, a caseworker for the Saratoga County Department of Social Services, and photographs introduced into evidence established that the home also faces a four-lane divided highway with a speed limit ranging from 45 to 55 miles per hour. Notably, the same evidence showed that there is no fence, or any similar physical barrier, directly between petitioner’s front yard and this highway. Matter of Cheryl Z v Carrion, 2014 NY Slip Op 05226, 3rd Dept 7-10-14

 

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As a Matter of Discretion, the Court Can Grant a Separate Property Credit for Property Which Was Originally Separate But Which Was “Transmuted” into Marital Property (Overruling Precedent)—the Credit Was Properly Denied Here

The Third Department determined that, under the facts of the case, Supreme Court properly denied the wife a credit for the marital home which originally was her separate property.  The wife subsequently put the property in both her and her husband’s names and the property was used to consolidate the debts of both husband and wife.  However, the Third Department took the opportunity to explain that property which is originally separate but which is then “transmuted” to marital property can be the basis of a separate-property credit, overruling a case relied upon by Supreme Court to deny the credit.  The credit can be applied as a matter of discretion:

…[T]o the limited extent that Campfield [95 AD3d 1429] may be read to limit a court’s discretion to award a separate property credit to a spouse, like the wife, who transmutes separate property into marital property without changing the nature of the property itself, it should no longer be followed. As we have subsequently noted without reference to the way in which a marital asset was acquired, credits are often given for the value of the former separate property (see Murray v Murray, 101 AD3d at 1321). We have also subsequently explained that the decision to award a separate property origination credit in such a situation is a determination left to the sound discretion of Supreme Court (see Alecca v Alecca, 111 AD3d at 1128; Murray v Murray, 101 AD3d at 1321). Therefore, our own jurisprudence subsequent to Campfield indicates that such credit is not precluded as a matter of law when separate property has been transmuted into marital property. Myers v Myers, 2014 NY Slip Op 05228, 3rd Dept 7-10-14

 

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Judges Not Entitled to Retroactive Monetary Damages Re: Legislature’s Failure to Enact Cost of Living Increases Since 2000

The First Department, with concurring and dissenting opinions, affirmed Supreme Court’s declining to award the plaintiffs-judges retroactive monetary damages based upon the legislature’s failure to enact cost of living increases since 2000.  In his concurring opinion, Justice Tom determined that the Court of Appeals, in Matter of Maron v Silver, 14 NYU3d 230 (2010), did not authorize the courts to award such damages, rather the Court of Appeals left it to the legislature to remedy the problem:

There is no lingering question whether the legislature acted properly during the time period when judges’ salary remained stagnant for years – it did not – nor was there any serious controversy regarding the merits of an increase in judicial compensation. Now that the legislature has acted, the issue presented is whether the pay increases that were authorized were themselves constitutionally deficient. However, plaintiffs are conflating an understandable lack of satisfaction with the financial outcome with an analysis more properly relegated to the constitutionality of the process. Relatedly, we are constrained by the text of the Court of Appeals decision, in Maron, which analyzed the prior process in terms of the conflict between the legislature’s constitutional prerogatives, and its budgetary policies that are outside the purview of those boundaries. * * *

In the final analysis, however, the viability of the remedy which plaintiffs seek is solely governed by the existing Court of Appeals ruling. The decision did not directly define the outer boundaries of judicial power should the legislature not provide for retroactive compensation, but seemingly left the nature and extent of compensation with the legislature. Thus, I do not find that the legislature, having abandoned its constitutionally offensive policy of linkage when recently increasing judicial salaries, has constitutionally offended by acting only prospectively, nor do I see a basis to conclude that the directives of the Court of Appeals were transgressed.  Larabee v Governor of the State of NY, 2014 NY Slip Op 05246, 1st Dept 7-10-14

 

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No Sanction for Automatic Destruction of Video Recordings of Accident Scene after 21 Days—Counsels’ Original Request for Video Recording at the Time of the Accident Was Complied With—Counsel Subsequently Asked for Six Hours of Recording Prior to the Accident—By the Time of that Request the Videotape Had Been Automatically Destroyed

The First Department, over a dissent, determined Supreme Court properly denied plaintiff’s motion for sanctions based upon allegations of spoliation of evidence.  In response to plaintiff’s counsel’s initial request, 84 seconds of videotape depicting plaintiff’s slip and fall were preserved. Subsequently plaintiff’s attorney requested video of the six hours preceding the accident.  By that time, however, the tapes had been automatically erased:

On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind,” which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party’s claim or defense … . In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . * * *

While it is true that a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and “should not be compelled to accept defendant’s self-serving statement concerning the contents of the destroyed tapes” … , this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff’s request for them. That obligation would impose an unreasonable burden on property owners and lessees.   Duluc v AC & L Food Corp, 2014 NY Slip Op 05243, 1st Dept 7-10-14

 

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Party Moving for Summary Judgment May Not Submit Expert Affidavits With the Identity of the Expert Redacted

In the summary judgment context, the Third Department determined the moving party in a medical malpractice action, unlike the non-moving party, could not submit affidavits from experts with the names of the experts redacted:

In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to “tender[] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” … . Among other submissions, defendants provided an affidavit from a medical expert whose identity was redacted and who opined on the appropriateness of plaintiff’s medical care and the adequacy of the warnings given to plaintiff.efendants also submitted an unredacted version of the affidavit for Supreme Court’s in camera review. Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion … .

While the Legislature has allowed for some protection from disclosure of the identities of medical experts during “[t]rial preparation” (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts’ identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation …, the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action. Further, we see no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor … . Requiring a movant to reveal an expert’s identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion … . Further, any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions … . For these reasons, we will not consider the incompetent affidavit of defendants’ medical expert. Rivera v Albany Med Ctr Hosp, 2014 NY Slip Op 05236, 3rd Dept 7-10-14

 

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Defendant Failed to Prove Three Elements of Adverse Possession

The Third Department determined that defendant failed to demonstrate it had acquired plaintiff’s property by adverse possession:

To establish adverse possession, defendant was required to demonstrate, by clear and convincing evidence, that its possession was “(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required [10-year] period” … . Additionally, where, as here, the claim of right is not founded upon a written instrument, it was necessary for defendant to “establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure'” … . Upon our review of the record, we agree with Supreme Court’s conclusion that defendant failed to raise an issue of fact with respect to more than one of these elements.

Specifically, defendant has failed to establish that its use of the disputed parcel was continuous or exclusive * * * [and] … defendant presented no evidence that it cultivated or improved the disputed parcel during the relevant period.  Salerno v CE Kill Inc, 2014 NY Slip Op 05224, 3rd Dept 7-10-14

 

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“Confidential Relationship” With Decedent Not Demonstrated As a Matter of Law

The Third Department determined Supreme Court properly ruled that petitioners had not demonstrated, as a matter of law,  the existence of a confidential relationship between the decedent and respondent. Where a confidential relationship is demonstrated, the stronger party has the burden of showing by clear and convinciing evidence that a particular transaction from which the stronger party benefitted was not the result of undue influence.  The court explained the operative criteria for a confidential relationship:

A confidential relationship is one that is “of such a character as to render it certain that [the parties] do not deal on terms of equality” … . Such inequality may occur from either one party’s “superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence” or from the other’s “weakness, dependence, or trust justifiably reposed” on the stronger party … .

The limited issue presented on this appeal is whether Supreme Court erred when it declined to find, as a matter of law, that there was a confidential relationship between respondent and decedent. The basis for petitioners’ claim that such a relationship existed was, in part, the familial relationship between respondent and decedent. A familial relationship, however, is not necessarily a confidential relationship … . Importantly, the existence of a confidential relationship is ordinarily a factual determination based upon “evidence of other facts or circumstances showing inequality or controlling influence”… . Matter of Bonczyk v Williams, 2014 NY Slip Op 05231, 3rd Dept 7-10-14

 

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Complaint Stated Cause of Action for Legal Malpractice/Court Rejected Argument that Defect in Service Could Have Been Cured by Successor Counsel as Speculative

The Second Department determined the complaint sufficiently stated a cause of action for legal malpractice.  The court rejected the defendants’ argument that successor attorneys could have remedied the defect in service as speculative because, in order to remedy the defect, Supreme Court would have had to exercise discretion:

To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care … . To establish proximate cause, it must be demonstrated that a plaintiff would have prevailed in the underlying action but for the attorney’s negligence … .

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory … . Grant v La Trace, 2014 NY Slip Op 05155, 2nd Dept 7-9-14

 

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