You are here: / Validity of Easement for Access to Lake Affirmed

Search Results

/

Validity of Easement for Access to Lake Affirmed

In affirming Supreme Court’s determination that the relevant deed allowed recreational use of a parcel of land (parcel 4) for access to a lake, and Supreme Court’s order to remove a fence which blocked access, the Third Department explained the relevant legal principles as follows:

“[T]he construction of a  deed, including  any  easements  set  forth  therein,  is generally  a question of law for the court, with extrinsic evidence being considered only if there are ambiguities”….  As owners  in the subdivision, plaintiffs’ deed sets forth various rights regarding parcel 4, including swimming privileges, docking privileges and – as relevant here – recreational  privileges. The recreational right is broadly set forth as having “the right to use, for recreational purposes, Parcel #4.” Significantly, this is not a  right merely  to cross parcel 4 to reach the lake. Consistent with the expansive right granted, subdivision owners exercised the recreational right in sundry manners, such as having picnics in various places on parcel 4 or placing chairs on the parcel to enjoy the view. Once on parcel 4, there is no relevant limitation – other than reasonableness and safety – as to where on the parcel subdivision owners  exercised their recreational rights (see generally Bruce and Ely, The Law of Easements and Licenses in Land, Location and Dimensions  of  Easements  §  7:3).  Jankowski v Lake Forest Homeowners, Inc, 516015, 3rd Dept 6-27-13

 

/

Absence of Complete Financial Disclosure Did Not Preclude Family Court from Making “Change-of-Circumstances” Determination

The Third Department affirmed Family Court’s modification of the father’s support obligation in the absence of complete financial disclosure because reliable financial evidence was in the record:

Although Family Court was entitled to deny the father’s requested relief based upon  his failure to comply with Family Ct Act § 424–a, this Court has approved orders of support in the absence of complete financial disclosure where reliable evidence otherwise has appeared on  the face of the record…. Here,  the father’s sworn statement of net worth and testimony, the latter of which was subject to examination by the Support Magistrate and cross-examination by the mother, was sufficient to demonstrate the requisite change in circumstances.  Matter of Mata v Nebesnik, 516104, 3rd Dept 6-27-13

 

/

Family Court Cannot Review Support Magistrate’s Order in Absence of Specific Objection

In reversing Family Court, the Third Department explained that Family Court does not have the authority to review those portions of a Support Magistrate’s order to which no specific objection his been made:

It is well established that “an order from a Support Magistrate is final and  Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires  specific  objections  for  issues  to  be  preserved”  ….  Family Court therefore lacked the authority to review the  order  dismissing  the  mother’s  first modification  petition,  to which no  objections had  been  filed… .  Matter of Hubbard v Barber. 515420, 3rd Dept 6-27-13

 

/ ,

Denial of Request to Take Child’s Testimony Outside Parents’ Presence Was Abuse of Discretion

The Third Department noted that it was an abuse of discretion to deny the request for a Lincoln hearing in a custody proceeding (allowing a child to testify outside the parties’ presence):

Although not an issue directly raised on appeal, the attorney for the child and the father both requested that Family Court hold a Lincoln hearing … rather than require the child to testify in open court.  Unfortunately, this request was denied and, after the mother refused to consent to the child testifying outside of the parties’ presence, the child had to testify under oath in front of both parents. While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate…, it was clearly an abuse of discretion for the court to put the child in this awkward position… . We again emphasize that “‘a child . . . should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them'” when explaining the reasons for his or her preference…. Given the circumstances of this case and the fact that – at her age [14]– her preference would  be  entitled to great weight, the record indicates that a Lincoln hearing would have limited the risk of harm and “would have been far more informative and worthwhile than . . . an examination of the child under oath in open court”… . Matter of Casarotti v Casarotti, 515270, 3rd Dept 6-27-13

 

 

/

Default Judgment against Mother for Failure to Appear Reversed

In vacating a default judgment entered against the mother who failed to appear in a custody and visitation proceeding, the Third Department noted that, in her motion to vacate, the mother offered a reasonable excuse for not appearing (car broke down), and the best interests of the child would be served by a plenary hearing:

“We must remain vigilant that the ultimate issue here is what is in [the children’s] best interest[s], not whether [the mother] should be punished for her actions”….  Here, the lack of a full hearing to determine the best interests of the children, a determination in which Family Court “is bound to assess numerous  factors,” constitutes a meritorious defense …. Accordingly, the default judgment entered against the mother must be vacated, and the matter remitted for further proceedings… .  Matter of Brown v Eley, 514981, 3rd Dept 6-27-13

 

/

Family Court’s Finding Father in Default for Nonappearance Reversed

In reversing Family Court’s finding the father in default for nonappearance in a custody and visitation modification proceeding, the Third Department noted that the father’s counsel did not tell the father his appearance was required and the court made no attempt to reach the father by phone:

The nonappearance of a party does not necessarily result in a default, “particularly where counsel appears upon the absent party’s behalf and offers an  explanation for his or her failure to attend”.   The father’s counsel stated that, while the father had elected not  to appear, counsel had  not  informed  him  that his appearance  was  necessary.  Family Court did not challenge the accuracy of that representation and, moreover, made no effort to reach the father telephonically or by other means.  Under these circumstances, Family Court erred in holding that the father’s nonappearance constituted a default …  Matter of Freedman, 514882, 414883, 3rd Dept 6-27-13

 

/ , ,

Family Court Could Not Countermand County Court’s Order of Protection

The Third Department noted that Family Court can not countermand County Court’s order of protection stemming from the father’s assault of the mother.  Therefore, Family Court could not require the mother to facilitate the reading of the father’s letters to the child:

Family Court does not have jurisdiction to countermand the provisions  of a  criminal court  order  of protection ….  Considering that “an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims”…, the criminal court order of protection would have to be modified, if deemed appropriate by County Court, before Family Court would be authorized to require the mother to accept, read or facilitate the reading of the father’s communications to the child.  Matter of Samantha WW v Gerald XX, 513853, 3rd Dept 6-27-13

 

/ ,

Events Before Last Custody Order Could Be Considered re: “Best Interests of Child” Even Though Only Post-Custody-Order Events Can Be Considered re: “Change of Circumstances”

In upholding Family Court’s custody ruling, the Third Department noted that events which occurred before the last custody order could be considered with respect to the best interests of the child:”

Family Court did not err in considering evidence of events that occurred before the entry of the prior custody order. Although  the inquiry as to whether  a substantial change  in circumstances has occurred should be limited to occurrences since the date of the prior custody order…, a best interests inquiry is broader and may include other facts that give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party’s fitness as a parent….  As less weight  is afforded to a stipulated order, admission of evidence concerning previous behavior or events is especially proper where no prior plenary hearing has been held and the prior order was issued on consent…. Here, Family Court did not abuse  its broad  discretion in determining the scope of the proof….  Matter of  Smith…, 513811, 3rd Dept 6-27-13

 

/ ,

Derivative Severe Abuse Finding Reversed

In reversing Family Court’s finding of derivative severe abuse, the Third Department explained the proof requirements as follows:

…[W]e agree with respondent that Family Court erred in concluding  that Nicholas and  Carolina were derivatively severely abused by respondent. As the Court of Appeals recently clarified in Matter of Dashawn W. (21 NY3d 36 [2013]), a determination of severe abuse requires that the court find, by clear and convincing evidence, as relevant here, not only that “the child [is] an  abused  child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved  indifference to human  life, which  result in serious physical injury to the child as defined in [Penal Law  § 10.00 (10)]” (Social Services Law  §  384-b  [8] [a] [i]), but  also that petitioner “made  diligent efforts to encourage  and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and  such  efforts have been unsuccessful and are unlikely to be successful in the foreseeable future” (Social Services Law  §  384-b  [8] [a] [iv]). Here, inasmuch as Family Court did not make either of the foregoing determinations and the evidence in the record does not enable us to do so, a finding of severe abuse against respondent cannot be sustained.  Matter of Nicholas S…, 511568, 3rd Dept 6-27-13

 

/ ,

Theories Not Included in Notice of Claim Precluded

In a slip and fall case, the First Department precluded plaintiff from asserting theories of liability not in the notice of claim:

The notice of claim limited plaintiffs’ theory of liability to negligent maintenance, upkeep and repair of the subject staircase, asserting that the infant plaintiff was caused to slip and fall due to a liquid substance on the floor and inadequate lighting. The infant plaintiff testified that he was caused to fall by “slippery juice” that was “all over the stairs.” He testified that he wasn’t able to see all of the juice due to insufficient lighting. Plaintiffs’ new theory, in opposition to the motion for summary judgment, that the infant plaintiff was caused to slip and fall due to various design defects including, inter alia, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials, is precluded… Rodriguez v Board of Educ of the City of NY, 2013 NY Slip Op 04912, 1st Dept 6-27-13

 

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