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New York Court Properly Declined to Exercise Jurisdiction Over Child Custody and Visitation Matters Due to Child’s Substantial Contacts with California

The Second Department determined Supreme Court had properly found that California, rather than New York, was the appropriate forum for determining child custody and visitation matters:

A court of this State which has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) may decline to exercise jurisdiction if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum (see Domestic Relations Law § 76-f[1]…). The factors to be considered in making this determination include the length of time the subject child has resided outside the state, any agreement between the parties as to which state should assume jurisdiction, the nature and location of the evidence required to resolve the pending litigation, the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence, and the familiarity of the court of each state with the facts and issues in the pending litigation (see Domestic Relations Law § 76-f[2]…). “Particularly relevant to the jurisdictional determination is whether the forum in which the litigation is to proceed has optimum access to relevant evidence” … . “Maximum rather than minimum contacts with the State are required” … . Greenfield v Greenfield, 2014 NY Slip Op 01434, 2nd Dept 3-5-14

 

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“Prompt Pay Law” Affords a Private Right of Action Against An Insurer Which Fails to Pay a Patient’s Undisputed Medical Claim

In a full-fledged opinion by Justice Austin, the Second Department determined the so-called “Prompt Pay Law” (Insurance Law 3224-a) affords an implied private right of action.  The law, therefore, can be enforced by a private lawsuit based upon its breach.  The defendant insurance company (First United) argued only the NYS Insurance Department could enforce the statute.

The Prompt Pay Law requires an insurer to pay undisputed claims within 30 days after receipt of an electronic submission or within 45 days after receipt by other means (see Insurance Law § 3224-a[a]). If a claim is disputed, the insurer is obligated to pay the undisputed portion of the claim, if there is any, and, within 30 days of receipt of the claim, notify the policyholder, covered person, or health care provider in writing of the specific reason that the insurer is not liable to pay the claim (see Insurance Law § 3224-a[b][1]). In the alternative, the insurer may request additional information necessary to determine its potential liability with respect to payment of the claim (see Insurance Law § 3224-a[b][2]). First United allegedly did neither. An insurer that fails to comply with the provisions of the Prompt Pay Law is obligated to pay the health care provider or the person submitting the claim the full amount of the claim, plus 12% interest per annum, to be computed from the date the claim was required to be paid (see Insurance Law § 3224-a[c][1]). * * *

Where a statute does not expressly confer a private cause of action upon those it is intended to benefit, a private party may seek relief under the statute “only if a legislative intent to create such a right of action is fairly implied’ in the statutory provisions and their legislative history” … . This inquiry involves three factors:” (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … .Only the third factor, which is generally the “most critical” … is disputed here. * * *

A review of the legislative history of the Prompt Pay Law reflects that the law was directed toward the protection of health care providers and patients from late payment of claims, and was not primarily designed to provide a mechanism for preventing harm to the public in general.  Maimonides Med Ctr v First United Am Life Ins Co, 2014 NY Slip Op 01441, 2nd Dept 3-5-14

 

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Question of Fact Whether Deed Procured by Fraud and Whether Mortgagee Had Notice of the Potential Fraud

The Second Department determined a question of fact had been raised about whether a property transfer was procured by fraud.  If so, the deed and the related mortgage would be void with respect to the mortgagee/incumbrancer (Wells Fargo).  There was evidence the mortgagee was on notice about the possible fraud and there was evidence of fraud in the factum:

Real Property Law § 266 protects the “title of a purchaser or incumbrancer for a valuable consideration, unless it appears that he [or she] had previous notice of the fraudulent intent of his [or her] immediate grantor, or of the fraud rendering void the title of such grantor.” Thus, a mortgagee is not protected in its title if it had previous notice of potential fraud by the immediate seller, or knowledge of facts which put it on inquiry notice as to the existence of a right in potential conflict with its own … . A mortgagee has a duty to inquire when it is aware of facts that would lead a reasonable, prudent lender to inquire into the circumstances of the transaction at issue … . A mortgagee who fails to make such an inquiry is not a bona fide incumbrancer for value … . Here, Wells Fargo’s submissions contain information regarding the plaintiff’s possession of the property that put it on inquiry notice as to the plaintiff’s potential right to the property … . Thus, Wells Fargo failed to establish its prima facie entitlement to judgment as a matter of law on the issue of whether it lacked notice of a potential fraud … . Real Property Law § 266 also does not protect a bona fide incumbrancer for value where there has been fraud in the factum, as the deed is void and conveys no title … . Such a conveyance conveys nothing, and a subsequent bona fide incumbrancer for value receives nothing … . Here, Wells Fargo failed to establish its prima facie entitlement to judgment as a matter of law on the issue of whether the subject deeds are void ab initio on the ground of fraud in the factum … . Williams v Mentore, 2014 NY Slip Op 01449, 2nd Dept 3-5-14

 

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Delay In Retaining Expert Did Not Warrant Preclusion of Expert’s Testimony

The Second Department determined Supreme Court should not have precluded plaintiff’s expert from testifying based upon the timing of the retaining of the expert and the serving of his expert information.  There was no evidence the delay was intentional or willful,  and no showing of prejudice to the opposing party:

CPLR 3101(d)(1)(i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,’ unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” … . Here, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful. Furthermore, any potential prejudice to the defendants was ameliorated by a two-month adjournment of the retrial agreed to by the parties … . Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiff’s expert from testifying at the retrial … . Burbige v Siben & Ferber, 2014 NY Slip Op 01426, 2nd Dept 3-5-14

 

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Delay In Retaining Expert Did Not Warrant Preclusion of Expert’s Testimony

The Second Department determined Supreme Court should not have precluded plaintiff’s expert from testifying based upon the timing of the retaining of the expert and the serving of his expert information.  There was no evidence the delay was intentional or willful,  and no showing of prejudice to the opposing party:

CPLR 3101(d)(1)(i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,’ unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” … . Here, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful. Furthermore, any potential prejudice to the defendants was ameliorated by a two-month adjournment of the retrial agreed to by the parties … . Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiff’s expert from testifying at the retrial … . Burbige v Siben & Ferber, 2014 NY Slip Op 01426, 2nd Dept 3-5-14

 

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Police Pursuit Not Justified by Defendant’s “Grabbing of his Waistband Area” or Subsequent Flight/Gun Suppressed

The Second Department affirmed the suppression of a weapon.  After seeing the defendant “grab… his waistband area” the police approached and the defendant ran, ultimately discarding a gun.  The pursuit was not justified by what the police saw prior to the defendant’s flight:

A suspect’s “flight alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” … . However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … .Under the circumstances of this case, the defendant’s “grabb[ing]” of his “waistband area” in such a way that it “[s]eemed” to the detectives that the defendant “had a bulge or something heavy that he was holding on the outside of his garments,” did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant, even when coupled with the defendant’s having made eye contact with the detectives and his flight from the detectives … . As the detectives’ pursuit of the defendant was unlawful, and the defendant’s disposal of the weapon during the pursuit was precipitated by the illegality and was not attenuated from it …, the Supreme Court properly granted that branch of the defendant’s omnibus motion which was to suppress the weapon. People v Haynes, 2014 NY Slip Op 01462, 2nd Dept 3-5-14

 

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Excessive Absences Do Not Establish a Parent’s “Educational Neglect”

The First Department, over a dissent, reversed Family Court’s finding that mother neglected the child by failing to provide for the child’s educational needs.  The record demonstrated that the child was defiant, violent and difficult to control, and mother had made substantial efforts to provide for her education:

Although the child had an excessive amount of absences from school, such absences “do[] not, ipso facto, establish either the parental misconduct or the harm or potential harm to the child necessary to a finding of [educational] neglect under Family Ct Act 1012(f)(i)(A)” … . Here, the record shows that the mother faced obstacles in getting the child to attend school on a regular basis. The mother took the child to school for a period of time, but she was financially unable to escort the child to school on an ongoing basis … . Moreover, even when the child was present, she had a history of truancy, tardiness, leaving school early and loitering in the hallways. The record further demonstrates that the child was defiant, violent, and had a history of lying and threatening to harm herself when the mother did not allow her to do what she wanted. The child also suffered from mood disorder, and had continuous hallucinations that made sleep difficult. The child was eventually hospitalized, and was given a number of psychiatric diagnoses. As a result, she was prescribed medication that caused her to be drowsy and disoriented, which further exacerbated her unwillingness and inability to attend school.Under the circumstances, the mother was unable to control the child and, despite her best efforts, struggled to get the child to attend school regularly, as well as to her therapy and drug treatment appointments… .  Matter of Brianna R, 2014 NY Slip Op 01410, 1st Dept 5-4-14

 

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Court Has Common-Law “Interest of Justice” Authority to Modify Its Own Order and/or a Stipulation Entered Into During Litigation

In affirming Supreme Court’s modifying its own order in the interest of justice, the Third Department explained the common law power to do so.  The order concerned the terms of a stipulation entered into during litigation:

A court has the common-law authority to, in its discretion, grant relief from a judgment or order in the interest of justice, considering “‘the facts of the particular case, the equities affecting each party and others affected by the judgment or order, and the grounds for the requested relief'” … . Even if the stipulation had not merged into an order of the court, the court has the “discretionary power to relieve parties from the consequences of a stipulation effected during litigation” … . Here, Supreme Court correctly noted that it had the authority to modify its own order. Hodge v Development at Helderberg Meadows LLC, 517046, 3rd Dept 2-27-14

 

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Plaintiff Estopped from Bringing State Retaliation Claim/Issue Decided by District Court Which Dismissed Plaintiff’s Federal Title VII Constructive Discharge Claim

In a full-fledged opinion by Justice Acosta, the First Department determined plaintiff was estopped from bringing her retaliation action in state court because the issue raised had necessarily been determined when the District Court dismissed her federal complaint. The plaintiff alleged she was retaliated against after she told management about allegedly discriminatory practices. The retaliation was alleged to have been the failure to act quickly to address a dispute with a coworker:

The doctrine of collateral estoppel applies where “[f]irst, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue . . . had a full and fair opportunity to contest the prior determination” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” (id. at 456).In considering plaintiff’s Title VII constructive discharge claim, the District Court examined, as it was obliged to do, the question of whether defendant “intentionally subjected her to an intolerable work environment”… . An integral part …of the court’s determination that defendant had not done so was its explicit finding that defendant “responded promptly after [p]laintiff’s complaint” and “the next day … attempted to address [p]laintiff’s concerns within the constraints of [defendant’s] staffing situation”… . Simmons-Grant v Quinn Emanuel Urquhart & Sullivan LLP, 2014 NY Slip Op 01407, 1st Dept 2-27-14

 

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Statements to Police Officer by Victim at the Scene Were “Nontestimonial” and Were Admissible as Excited Utterances

The Third Department determined a police officer’s testimony about what the assault victim, Stokes, said at the scene and a video of the officer’s encounter with the victim did not violate the defendant’s right to confront witnesses because the admitted statements were “nontestimonial” and “excited utterances.” Stokes had died before the trial:

The officer testified that Stokes said that she had been hit in the head with a bat, described her assailant, and said that he was in a nearby community center. The officer further testified that police then began looking for defendant. The video reveals that the officer encountered Stokes immediately upon arriving at the scene. She was bleeding profusely from her head and complaining of dizziness. The officer asked Stokes about her assailant’s location, description and name, where the attack had occurred, and whether there were other victims, promptly relaying her answers to other police officers and emergency medical personnel who were dispatched to locate and assist Moore and pursue defendant. After the first few minutes, the officer asked no further questions about the incident, concentrating instead on attempting to calm Stokes as she became increasingly agitated and apprehensive about, among other things, the fact that defendant had not been found. County Court correctly determined that the statements by Stokes were admissible as excited utterances … . Further, we find no constitutional violation. The video reveals that the officer’s primary purpose in questioning Stokes was “to enable the police to meet an ongoing emergency and apprehend the perpetrator, not to provide evidence for later prosecution,” and Crawford [541 US 36} does not preclude such nontestimonial statements…. People v Anderson, 105060, 3rd Dept 2-27-14

 

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