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Modification of Custody Reversed

The Second Department reversed Family Court’s modification of a custody arrangement (changing custody from mother to father), finding there was no sound and substantial basis for the modification in the record. There was evidence that the father induced the mother to agree to allow him to have custody of the child while she recovered from surgery by falsely stating the arrangement would be temporary:

Upon weighing the appropriate factors (see Eschbach v Eschbach, 56 NY2d 167), we find that the Family Court’s determination that the best interests of the child would be served by remaining in the father’s physical custody lacked a sound and substantial basis in the record, and that the child’s best interests will be served by awarding the mother sole physical custody of the child. The Family Court failed to give sufficient weight to the mother’s testimony, which it credited, that she only intended for the father to have custody of the child temporarily while she underwent a hysterectomy and moved from Washington to Colorado with her new husband. The record here shows that the mother, who stays at home to care for her children, has been the primary caregiver throughout the child’s life, while the father had limited involvement with the child until the mother transferred custody to him …. Furthermore, while living with her mother, the child thrived both at home and at school … .  * * * The Family Court also erred in finding that the mother replaced the “father figure” in the child’s life. The record contains no evidence to support a finding of parental alienation against the mother.

The Family Court also failed to give sufficient weight to the fact that the child’s relationship with her half-siblings, who reside with the mother, will continue to be disrupted if she remains in the father’s care, as the record demonstrates that the child and her half-siblings have a close and healthy relationship. Courts will not disrupt sibling relationships unless there is an overwhelming need to do so… . Matter of Shannon J v Aaron P, 2013 NY Slip Op 07733, 2nd Dept 11-20-13

 

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Defendant’s Waiver of His Right to Appeal, Which Included His Signing a Printed Form Used by Rockland County, Was Invalid

The Second Department determined defendant’s waiver of his right to appeal was invalid:

The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a Rockland County pre-printed form waiver, as we have previously stated, this form “contained erroneous statements with regard to the waiver of the right to appeal” and should not have been utilized … . The Supreme Court’s terse colloquy at the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal. Further, the defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing … . Under these circumstances, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal.  People v Salgado, 2013 NY Slip Op 07755, 2nd Dept 11-20-13

 

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Defendant’s Flight Did Not Justify Police Pursuit and Entry Into Defendant’s Apartment—Evidence Properly Suppressed

The Second Department affirmed Supreme Court’s suppression of evidence.  Based upon a confidential informant’s vague description of a man who was about to be part of a drug sale, a police officer followed the defendant. The defendant started running and threw a small object away.  The defendant then entered an apartment with a key.  The police ultimately broke the door down and saw the defendant throw bags of marijuana and heroin out the window.   A subsequent search warrant turned up more drugs. The Second Department wrote:

“Police pursuit of an individual significantly impede[s]’ the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit … . “Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … .

Here, there were no specific circumstances indicating that the defendant might be engaged in criminal activity. The fact that the defendant matched the extremely vague description given by the informant of someone who would conduct a drug transaction somewhere in the vicinity, sometime later that day, was not sufficiently indicative of criminal activity … . * * *

Moreover, the detective compounded the unlawful pursuit by entering the apartment without consent or probable cause and exigent circumstances … . While retreat into one’s home cannot thwart an otherwise proper arrest set in motion in a public place, probable cause for the arrest is required … . When the detective entered the apartment, he did not have probable cause to believe that the defendant had committed a crime. Accordingly, all of the physical evidence was properly suppressed.  People v Nunez, 2013 NY Slip Op 07753, 2nd Dept 11-20-13

 

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Criteria for Exercising Jurisdiction Over Foreign Corporation Based On Presence of Subsidiary Within Jurisdiction—the “Department Doctrine”

The Second Department explained when the presence of a subsidiary within the jurisdiction of the court can be sufficient to exercise jurisdiction over the foreign parent under the so-called “department doctrine” (the subsidiary must be a virtual “department” of the parent):

If control exercised by the domestic corporation over the foreign corporation … . Such control may be manifested in numerous ways and, thus, the method by which such control may be demonstrated will necessarily depend on the attendant facts … . Although the Court of Appeals has noted that it “has never held a foreign corporation present on the basis of control, unless there was in existence at least a parent-subsidiary relationship,” it has nevertheless indicated that this factor is not dispositive … . “The control over [a] subsidiary’s activities . . . must be so complete that the subsidiary is, in fact, merely a department of the parent” … . It is only when the two corporations are “in fact, if not in name . . . one and the same corporation, [that] there is realistically no basis for distinguishing between them” for jurisdictional purposes … .  Goel v Ramachandran, 2013 NY Slip Op 07708, 2nd Dept 11-20-13

 

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Notices of Claim Were Sufficient to Notify County of a “Navigation Law 181” Cause of Action Re: a Fuel Spill

The Second Department determined the notices of claim against the county were sufficient even though they did not explicitly mention a violation of Navigation Law section 181.  The notices alleged the county was negligent with respect to underground fuel storage tanks resulting in leakage and contamination of water wells. The notices did not specifically recite that the County was subject to strict liability for a violation of Navigation Law section 181. The Second Department explained the relevant legal and factual notice requirements:

…[T]he plaintiffs, as a condition precedent to the assertion of Navigation Law § 181 cause of action, were required to serve a notice of claim that included information and allegations specific to their Navigation Law § 181 cause of action. County Law § 52 requires a notice of claim to be served upon the County, and applies to any claim for “for invasion of personal or property rights, of every name and nature” and to “any other claim for damages arising at law or in equity, alleged to have been caused or sustained in whole or in part by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county” (County Law § 52). The assertion of a Navigation Law § 181 cause of action against the County, which could result in the County being held strictly liable for all cleanup costs and damages resulting from a discharge of petroleum, is subject to the broad notice-of-claim requirements of County Law § 52… .

…[T]he plaintiffs’ notices of claim were sufficient to apprise the County that they intended to pursue a cause of action premised upon a violation of Navigation Law § 181. The plaintiffs were not required to “state a precise cause of action in haec verba” in their notices of claim … . “The test of the sufficiency of a [n]otice of [c]laim is merely whether it includes information sufficient to enable the [municipality] to investigate'” the claim … . Here, the plaintiffs’ notices of claim set forth conduct on the part of the County which allegedly caused the discharge of petroleum onto the plaintiffs’ properties, thereby resulting in damage to the properties. The notices of claim provided information sufficient to enable the County to investigate the alleged fuel spills, leakage, and seepage while information concerning the alleged fuel spills, leakage, and seepage was still readily available. As such, the notices of claim were sufficient to alert the County to the potential Navigation Law § 181 cause of action, and afforded the County ample opportunity to promptly investigate the alleged spills, leakage, and seepage underlying that cause of action. Bartley v County of Orange, 2013 NY Slip Op 07701, 2nd Dept 11-20-13

 

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Supreme Court Did Not Have Subject Matter Jurisdiction In an Action Seeking Compensation for an Alleged Unconstitutional Taking of Land Based Upon the Denial of a Subdivision Application—the Court of Claims Has Exclusive Jurisdiction

The plaintiff landowner wished to subdivide a 16 acre parcel and build homes with septic systems.  The land is in a watershed.  The town rejected the subdivision because the septic systems would violate the watershed regulations. The plaintiff then sued in Supreme Court seeking $1,000,000 as compensation for the alleged unconstitutional taking of his property.  In concluding that Supreme Court did not have subject matter jurisdiction, the Second Department wrote:

The plaintiff acknowledges that the instant action for a judgment declaring an unconstitutional taking is a precursor to the commencement of an action to recover damages in the Court of Claims based on that taking. The plaintiff, in effect, seeks to bifurcate its claim: to establish the State’s liability in the Supreme Court, and then to establish damages in the Court of Claims. The State Constitution, however, vests the Court of Claims with exclusive subject matter jurisdiction over claims against the State for appropriation of real property (see NY Const, art VI, § 9; Court of Claims Act § 9[2]). The plaintiff’s action runs afoul of this exclusive grant. Therefore, we agree with the Supreme Court that it lacks subject matter jurisdiction over the plaintiff’s claim… . Monroe Equities LLC v New York State, 2013 NY Slip Op 07715, 2nd Dept 11-20-13

 

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Lease Which Purported to Deregulate Rent-Controlled Apartment Is Void As Against Public Policy

In a full-fledged opinion by Judge Mazzarelli, the First Department determined that a lease (called the “New Agreement”) which purported to deregulate a rent-controlled apartment was void as against public policy:

In Drucker v Mauro (30 AD3d 37, 39 [1st Dept 2006], appeal dismissed 7 NY3d 844 [2006]) this Court stated:

“It is well settled that the parties to a lease governing a rent-stabilized apartment cannot, by agreement, incorporate terms that compromise the integrity and enforcement of the Rent Stabilization Law. Any lease provision that subverts a protection afforded by the rent stabilization scheme is not merely voidable, but void (Rent Stabilization Code [9 NYCRR] § 2520.13), and this Court has uniformly thwarted attempts, whether by mutual consent or by contract of adhesion, to circumvent regulated rent maximums.”

Even an agreement that modifies the rent laws in a manner favorable to the tenant is of no effect (id. at 41). The New Agreement does not merely modify the rent regulations; it declares them inapplicable to the apartment. Without question, then, the New Agreement is void. We note that, although Drucker addressed only agreements to deregulate rent-stabilized apartments, there is no logical reason why the same principle should not apply to the rent-controlled apartment at issue here.  Extell Belnord LLC v Uppman, 2013 NY Slip Op 07697, 1st Dept 11-19-13

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Handcuffing Defendant Constituted an Arrest/Defendant’s Actions Did Not Justify Use of Handcuffs

The First Department, contrary to the suppression-hearing court, determined the act of handcuffing the defendant constituted an arrest.  [The matter was sent back to allow the hearing court to determine whether a radio transmission from a fellow officer provided probable cause for the arrest, an issue the hearing court had not ruled upon.]:

…[W]e reject the People’s argument that defendant was not under arrest at the point when he was handcuffed. Although the use of handcuffs is not dispositive of whether an investigatory detention on reasonable suspicion has been elevated to an arrest, handcuffing is permissible in such a detention only when justified by the circumstances (see People v Acevedo, 179 AD2d 465, 465-66 [1st Dept 1992], lv denied 79 NY2d 996 [1992]). In this case, the police had no reason to believe that defendant was either armed or dangerous. Nor was there any indication on the record that defendant offered any resistance prior to the handcuffing, or gave the police any reason to believe that he might flee. The fact that defendant was “a little resistant” when told to put up his hands is not, on its own, sufficient to establish that the officers had any difficulty restraining defendant. Rather, like Acevedo, this case presents a situation in which the officers’ initial use of handcuffs was not warranted by the threat confronting them…, so that the detention exceeds the proper bounds of an intrusion made on less than probable cause. People v Blanding, 2013 NY Slip Op 07692, 1st Dept 11-19-13

 

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Worker’s Compensation Carrier Was Entitled to Credit for Amount Claimant Recovered in Civil Suit against Employer and Co-employees

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the worker’s compensation carrier, the NYS Insurance Fund (SIF), was entitled to a credit against the claimant’s future worker’s compensation benefits in the amount of her recovery in a lawsuit against her employee and a co-employee:

Workers’ Compensation Law § 29 (1) provides that an employee injured by “the negligence or wrong of another not in the same employ” may commence an action against “such other.”  If the employee has received workers’ compensation benefits, SIF or the other entity or person liable for the payment of these benefits

“shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting such recovery, to the extent of the total amount of compensation awarded under or provided or estimated . . . for such case and the expenses for medical treatment paid or to be paid by it and to such extent such recovery shall be deemed for the benefit of”

SIF or the other entity or person liable for the payment of compensation benefits (Workers’ Compensation Law § 29 [1]). Concomitantly, section 29 (4) specifies that “[i]f such injured employee . . . [shall] proceed against such other,” SIF or the other entity or person liable for the payment of compensation benefits “shall contribute only the deficiency, if any, between the amount of the recovery against such person actually collected, and the compensation provided or estimated . . . for such case” (Workers’ Compensation Law § 29 [4]).

Section 29 (4) is referred to as the carrier’s credit against or right to offset the proceeds of a lawsuit brought pursuant to section 29 (1).  The lien and offset provisions in sections 29 (1) and (4), respectively, “cushion[] the inflationary impact of the cost of compensation insurance and avoid double recovery by the claimant for the same predicate injury”… . Matter of Beth V v NYS Office of Children & Family Services…, 202, CtApp 11-19-13

 

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Village Properly Withdrew Its Defense and Indemnification of Officials When Officials Refused a Reasonable Settlement Offer

The Court of Appeals, in a full-fledged opinion by Judge Lippman (with a dissent), determined “that a municipality, consistent with its obligations under Public Officers Law, may withdraw its defense and indemnification of current and former municipal officials and officers in a civil action for their failure to accept a reasonable settlement offer, and that First Amendment concerns with respect to the settlement’s nondisclosure clause do not warrant a different conclusion:”

The Freeport Village Code § 130-6 adopts Public Officers Law § 18 (3)(a), which provides that “public entity shall provide for the defense of [an] employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.”  The Village’s duty to defend and indemnify “shall be conditioned upon: . . . the full cooperation of the employee in the defense of such action or proceeding against the Village based upon the same act or omission” (Freeport Vil. Code § 130-6 [A][1] [emphasis added]; Public Officers Law § 18 [5][ii]). * * *

A municipal employer’s statutory duty to defend a public officer under Public Officers Law § 18 is similar to an insurance company’s contractual duty to defend an insured (Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586, 588 [3d Dept 2007]).  As in the insurance context, petitioners were obligated to cooperate in the defense of the action as a condition of their defense and indemnification (Public Officers Law § 18 [5][ii]; Freeport Vil. Code § 130-6 [A][1]).

“In order to disclaim coverage on the ground of an insured’s lack of cooperation, the carrier must demonstrate that (1) it acted diligently in seeking to bring about the insured’s cooperation, (2) the efforts employed by the carrier were reasonably calculated to obtain the insured’s cooperation, and (3) the attitude of the insured, after cooperation was sought, was one of willful and avowed obstruction”… . Matter of Lancaster v Incorporated Village of Freeport…, 181, CtApp 11-19-13

 

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