You are here: / Effect of “Notwithstanding” Clause; Criteria for Reformation of Contr...

Search Results

/

Effect of “Notwithstanding” Clause; Criteria for Reformation of Contract

In a full-fledged opinion by Justice Acosta, the First Department affirmed Supreme Court’s denial of defendant’s motion to dismiss a breach of contract complaint.  Plaintiffs contended the floor share price in the “notwithstanding” clause of the contract was an error, and submitted a supporting email referring to a different price in opposition to the motion to dismiss. The court agreed that the email was sufficient to overcome the dismissal motion and explained the powerful legal effect of a “notwithstanding” clause and the criteria for reformation of a contract:

It is well settled that trumping language such as a “notwithstanding” provision “controls over any contrary language” in a contract … . This Court has likewise noted that “inconsistency provisions” — i.e. those that dictate which of two contract provisions should prevail in the event of an inconsistency — “are frequently enforced by courts” … .

In construing statutes and contracts, the U.S. Supreme Court has remarked that “the use of . . . a notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the notwithstanding’ section override conflicting provisions of any other section” … . Thus, the effect of a “notwithstanding” clause will prevail “even if other provisions of the contract[] might seem to require . . . a [conflicting] result” … . * * *

Before a court will grant reformation of a contract, the party demanding this equitable remedy ” must establish his right to such relief by clear, positive and convincing evidence'” … . The purpose of reformation is not to “alleviat[e] a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties” … . In order to “overcome the heavy presumption” that the contract embodies the parties’ true intent, the party seeking reformation must “show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties” … . Warberg Opportunistic Trading Fund LP v GeoResources, Inc, 2013 NY Slip Op 06826, 1st Dept 10-22-13

 

/ , ,

Failure to Call Treating Physician Allowed Negative Inference in Case Alleging Mother Incapable of Caring for Child by Reason of Mental Illness

The First Department determined Family Court properly found mother incapable of caring for her child by reason of mental illness and noted the court properly drew a negative inference from the mother’s failure to call her own treating physician to rebut the allegations in the petition and a suspended judgment is not available:

The evidence, including testimony from a court-appointed psychologist who examined respondent mother, provided clear and convincing evidence that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child (see Social Services Law § 384-b[4][c], [6][a]…). The psychologist testified that respondent mother suffers from, inter alia, bipolar disorder, which interferes with her ability to care for the child, placing the child at risk of becoming neglected if she is returned to her mother’s care. Moreover, respondent mother’s testimony confirms that she lacks insight into the nature and extent of her mental illness … .

Contrary to respondent mother’s contention, the Family Court properly exercised its discretion by drawing a negative inference against her for failing to call her treating physician or other medical providers to rebut the allegations raised in the petition and by the testimony after she expressed an intention to call her providers … .

The Family Court did not err in denying respondent mother’s application for a suspended judgment. This dispositional alternative is not available after a fact-finding determination of mental illness (see SSL § 384-b [3] [g], [4] [c]…). Matter of Love Joy F, 2013 NY Slip Op 06792, 1st Dept 10-17-13

 

/

Court Should Have Held Lincoln Hearing to Learn Preferences of 12-Year-Old Child

The Third Department remitted the matter to Family Court for a Lincoln hearing to determine the preferences of the 12-year-old child with respect to custody:

While the decision whether to conduct such a hearing lies within the court’s discretion …, it is often the preferable course … .  In this case, the court originally indicated that it intended to speak with the child and later reiterated this position.  While we can assume that the court ultimately decided that an interview with the child was not warranted or appropriate, the record is bereft of any articulation or explanation for such decision.

Additionally, we cannot ascertain from the record whether Family Court failed to consider the child’s wishes with respect to spending time with her father or whether it considered the child’s wishes, but rejected them as a basis for a modification. While Family Court stated in regard to the violation petition that the child’s wishes did not excuse the mother from complying with the existing orders, it is not clear to what extent, if any, this conclusion played in the court’s determination regarding the modification petition.  To be sure, the wishes of this 12-yearold child were “at minimum, entitled to consideration” …, and the record does not reflect whether such consideration was given to the child’s wishes.  As a result, and because we conclude that a Lincoln hearing is called for under the circumstances here … , we must remit the modification petition to Family Court. Matter of Yeager v Yeager, 515860, 3rd Dept 10-17-13

 

/

Father Not Denied Due Process by Absence from Portion of Neglect Proceeding

In affirming Family Court’s finding that the parents had permanently neglected their daughter, the Third Department noted that father had not been denied due process based on his absence from some of the proceedings:

We reject the father’s assertion that his due process rights were violated when Family Court proceeded with a portion of the fact-finding hearing in his absence.  Although a parent in a proceeding seeking to terminate parental rights has a right to be present for all stages of the proceeding, that right is not absolute … .  On the second day of the factfinding hearing, the father’s counsel appeared and informed the court that his client would not be present due to health reasons. Rather than request an adjournment, counsel affirmed that the father’s attendance at the hearing “would not be required today,” requested another hearing date – which the court agreed to schedule – so as to allow the father to testify, and thereafter actively participated in the hearing.   Under these circumstances, we discern no error in Family Court’s decision to proceed with the hearing in the father’s absence or any prejudice inuring to the father as a result thereof… . Matter of Arianna BB…, 2013 NY Slip Op 06758, 3rd Dept 10-17-13

 

/

Order Prohibiting Visitation Unless Recommended by Therapist Improper

The Third Department affirmed Family Court’s neglect finding but determined the order prohibiting visitation unless recommended by a therapist improperly delegated the court’s authority to make determinations in the best interests of the child:

…[W]e find merit to respondent’s argument that Family Court’s order prohibiting visitation except “as therapeutically recommended or attendance at therapy with [the child] as recommended by a therapist after review by . . . Family Court” constitutes an improper delegation of the court’s authority to make determinations on the issue of the best interests of the child … .  Although the record contains some indication that Family Court recognized and attempted to avoid this delegation, the order failed to require further review unless triggered by the therapist, and did not direct the child to attend therapy with respondent unless recommended by the therapist.  As the order thus makes the recommendation of a therapist a prerequisite for any visitation, we find that there was an improper delegation of the court’s authority, and the matter is therefore remitted to Family Court for further proceedings regarding the issue of visitation… . Matters of Alisia M…, 515188, 3rd Dept 10-17-13

 

/

Family Court Properly Assumed Jurisdiction Over California Order

In affirming Family Court’s dismissal of mother’s petition for a modification of custody, the Third Department noted that Family Court properly assumed jurisdiction over a California custody order:

Family Court properly assumed jurisdiction over this proceeding.  As California no longer had exclusive continuing jurisdiction over this matter (see 28 USC § 1738A [d]), New York could assume jurisdiction for the purpose of modifying the California order so long as it “[was] the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state” (Domestic Relations Law § 76 [1] [a]; see Domestic Relations Law § 76-b).  “Home state” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a [7]).   Matter of Clouse v Clouse, 514987, 3rd Dept 10-17-13

 

/

Child Support Standards Act Formula Should Have Been Used

The Third Department determined Family Court erred in determining the parents’ respective contributions to child support when it used the catchall factor (factor 10, FamCtAct 413 (1)(f)(10)) to deviate from the Child Support Standards Act (CSSA) formula because the father had custody of the older child all the time and the younger child every other week.  The Third Department determined the CSSA formula should have been applied:

Here, the Support Magistrate stated that he was relying on factor 10, the catch-all provision for “[a]ny other factors the court determines are relevant in each case” (Family Ct Act § 413 [1] [f] [10]).  His stated reason for deviating from the presumptive amount was that the father has physical custody of the older child all of the time and of the younger child every other week, so the Support Magistrate adjusted the amount such that the father would not pay support when both children are with him.  This was merely another way of applying the proportional offset method, which would reduce a parent’s child support obligation based upon the amount of time that he or she actually spends with the child … .

The Court of Appeals has rejected this method as impractical, unworkable and contrary to the statute and legislative history … .  … While application of the CSSA formula may seem to produce unfair results where, as here, the parties equally share parenting time with a child, “[t]he difficult policy choices inherent in creating an offset formula for shared custody arrangements are better left to the Legislature” … .  The costs of providing suitable housing, clothing and food for the children during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount (see Family Ct Act § 413 [1] [f] [9]…). While there may be circumstances in which a deviation is warranted in situations involving shared parenting time, the Support Magistrate’s articulated reason did not provide an adequate basis for such deviation here… . Matter of Ryan v Ryan. 514954, 3rd Dept 10-17-13

 

/

No Sound Basis for Family Court’s Determination Shared Custody Was Appropriate

The Third Department determined there was not a sound basis for Family Court’s determination that shared custody was appropriate

…[N]either party appears to have requested such relief, and the parties’ testimony at the fact-finding hearing was replete with mutual allegations of domestic violence and poor communication, as well as descriptions of vastly differing parenting styles. Moreover, although not a determinative factor, we note the absence in the court’s decision of any discussion concerning the wishes or preferences of the children, both of whom are in their teens, even though this factor should be “entitled to great weight” … .   Nor is there any discussion addressing the difficulties in a shared custody arrangement raised by the testimony concerning the son’s alleged preference to live in the mother’s home.  Additionally, while the court specifically found that there was some evidence that the father “does not fully understand or appreciate the daughter’s dietary needs and her medical issues,” it was not explained how this concern would be met by the alternating physical custody schedule set forth in the decision.  Given these and other concerns raised by the parties’ testimony, we deem it appropriate to remit the matter to Family Court for a determination of primary physical custody of the children, accompanied by appropriate findings detailing the facts essential to such decision… . Matter of Glenna Y…, 514558, 3rd Dept 10-17-13

 

/

Custody Petition by Maternal Grandmother Denied in Favor of Child’s Mother

In affirming the denial of custody to petitioner, the maternal grandmother, in favor of the child’s mother, the Third Department explained the relevant criteria:

“‘[A] biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances'” … .  Significantly, the nonparent seeking custody bears a heavy burden of establishing the existence of extraordinary circumstances … .

Persistent neglect will be found where the parent “has failed either to maintain substantial, repeated and continuous contact with a child or to plan for the child’s future” … . While relinquishing care and control of a child for a continuous period of 24 months will be considered an extraordinary circumstance (see Domestic Relations Law § 72 [2]…), petitioner concedes that no such period of separation occurred here … .  Although the child had visits with petitioner that lasted multiple weeks and, on at least one occasion, three months, the record does not reflect a prolonged period of separation or “a complete abdication of parental rights and responsibilities”… . Matter of Mildred PP v Samantha QQ, 514416, 3rd Dept 10-17-13

 

/

Imputed Income, As Opposed to Actual Income, Used to Determine Mother’s Contribution to College Costs

The Third Department used imputed income to determine mother’s ability to contribute to the children’s college education:

In determining child support or related expenses, a court may impute income to a parent based on that party’s failure to seek more lucrative employment that is consistent with his or her education, skills and experience … .  Imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay … .  Thus, imputed income may be attributed to a party as long as the court articulates the basis for imputation and record evidence supports the calculations … .

Here, Family Court accepted the mother’s income as $15,000, without imputing any income to her.  She testified that she earned approximately that amount at her part-time job as a tax preparer, but acknowledged that she has a Bachelor’s degree in accounting and could work full time, yet chooses to work reduced hours out of loyalty to her employer.  Because we are basing the college expenses on the parties’ ability to pay rather than their actual income, we will impute income to the mother based on her underemployment and ability to earn more ,,, .  Using the mother’s testimony that she earned approximately $15,000 working full time from January through April and two days per week for the remainder of the year, we can extrapolate a full-time salary for her at the same earning rate, resulting in an imputed income of $25,000.   Matter of Curley…, 514294, 3rd Dept 10-17-13

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy