You are here: / New York Had Jurisdiction to Modify Pennsylvania Support Order

Search Results

/ ,

New York Had Jurisdiction to Modify Pennsylvania Support Order

In finding that Family Court had jurisdiction to modify a Pennsylvania support order, the Second Department wrote:

The Uniform Interstate Family Support Act (hereinafter UIFSA), codified in article 5-B of the Family Court Act, provides, in pertinent part, that a party seeking to modify and/or enforce a child support order issued in another state “shall register that order in this state” (Family Ct Act § 580-609). The parties agree that the support order governing the father’s child support obligations, which was issued by the Court of Common Pleas of Montgomery County, Pennsylvania … (hereinafter the Pennsylvania support order) was registered in the Family Court, Suffolk County, pursuant to UIFSA …. The Family Court had jurisdiction to modify the Pennsylvania support order, upon registration thereof, since none of the parties resides in Pennsylvania, the petitioner mother does not reside in New York, and the respondent father, at all relevant times, was subject to personal jurisdiction in Suffolk County (see Family Ct Act § 580-611[a][1]). Matter of Gowda v Reddy, 2013 NY Slip Op 02577, 2011-06440, 2nd Dept, 4-17-13

 

/

Hearing Required for Motion for Resentencing

The Second Department explained the hearing requirement of Criminal Procedure Law 440.46 (re: a motion for resentencing) as follows:

CPL 440.46(3), provides, in pertinent part, that “[t]he provisions of section twenty three of chapter seven hundred thirty eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section.” Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: “The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine . . . any controverted issue of fact relevant to the issue of sentencing.” The defendant’s presence is not required where the court determines as a matter of law that a defendant is not entitled to relief pursuant to CPL 440.46 …. However, here, the People conceded that the defendant met the statutory requirements for relief pursuant to CPL 440.46, and the question before the court was whether substantial justice dictated that the motion should be denied. Thus, the defendant is entitled to appear before the court and to be given an opportunity to be heard .. . Since the defendant was not brought before the court, and there is no indication that he knowingly, intentionally, and voluntarily relinquished that right …, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for a new determination of the defendant’s motion, to be made after affording him an opportunity to appear before the court, and, if necessary, conducting a hearing … . People v Allen, 2013 NY slip Op 02586, 2011-11680, Ind No 1087/98, 2nd Dept 4-17-13

 

/ , ,

Resident in Hotel Under Contract to Provide Rooms to Homeless Persons Entitled to Rent Stabilization Protection

In finding that the respondent (Pitt) was a “permanent tenant” of a hotel which rented rooms to homeless persons under an agreement with the NYC Human Resources Administration (thereby entitling the respondent to the protections of the Rent Stabilization Code), the First Department explained the “exception to mootness” doctrine:”

As a threshold matter, we find that this appeal is not rendered moot by the fact that Pitt voluntarily vacated the premises before the appeal was perfected. Although, as a general principle, courts are precluded from considering questions which have become moot by a change in circumstances, an exception to the mootness doctrine exists in situations that present the following: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . This matter presents an issue of substantial public interest that is likely to recur and evade review. Specifically, this Court must address the question of what constitutes a legal tenancy under the Rent Stabilization Code, and what rights are vested in a person occupying premises under the contract between a landlord and a social service agency. This is an issue that affects a large number of New Yorkers who declare permanent tenancy in a SRO [single room occupancy facility]. Thus, it presents an exception to the mootness doctrine … . Branic Intl Realty Corp v Pitt, 2013 NY Slip Op 02522, 9453 & 57024/10, 363, 1st Dept, 4-16-13

 

/ ,

No Common Law Negligence Cause of Action to Recover for Injuries Caused by Dog, Even Where Dog Owner May Be Negligent

Where the plaintiff was injured when defendant’s dog collided with his bicycle, the First Department determined defendant’s (the dog owner’s) motion for summary judgment should have been granted, despite allegations of negligence on the part of the defendant (there was a dissent):

Plaintiff was injured when, while riding his bicycle, he collided with defendant’s dog. Plaintiff alleges that defendant was negligent because as plaintiff was riding nearby, defendant called for the dog, which was not wearing a leash, to come to her, resulting in the dog’s running into plaintiff’s path of travel.

“New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” …. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal’s vicious propensities …. The term “vicious propensities” includes “the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” …. Here, there is no evidence that defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted ….  Doerr v Goldsmith, 2013 NY Slip Op 02501, 9030, 103840/10, 1st Dept, 4-16-13

 

/

Condition of Fence Gate “Open and Obvious” Precluding Recovery

Plaintiff was injured when, sitting on the ground, he leaned back against a fence-gate which swung open causing him to fall.  The First Department determined the condition of the fence was “open and obvious” precluding recovery (there was a dissent).  The court wrote:

Although property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware …, they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous … . “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” …Here, defendant … established prima facie that the unlocked gate that allegedly caused plaintiff to injure himself was open and obvious, and was not inherently dangerous. The color photographs in the record show that the gate was “plainly observable and did not pose any danger to someone making reasonable use of his or her senses” … .  Boyd v New York City Hous Auth, 2013 NY Slip Op 02507, 9724, 310500/10, 2nd Dept 4-16-13

 

/

Failure of Freezer to Properly Cool Baked Goods Was an “Occurrence” (I.e., “Accident”) within the Meaning of the Commercial General Liability Policy

Plaintiff manufactured a freezer used by a nonparty bakery.  According to the bakery, the freezer didn’t cool cakes to the proper temperature and the cakes were therefore ruined when cut, causing the bakery millions in damages.  The bakery sued plaintiff and plaintiff sought defense and indemnity from its insurer.  The insurer disclaimed coverage, arguing that the facts did not constitute a covered “occurrence” (i.e. “accident”) within the meaning of the policy.  In affirming the denial of the insurer’s motion to dismiss (there was a dissent), the First Department wrote:

Courts have held that commercial general liability (CGL) policies do not insure against faulty workmanship in the work product itself … . However, such policies do insure against property damage caused by faulty workmanship to something other than the work product … . Plaintiff does not seek coverage simply for allegedly faulty workmanship that caused the defect in the freezer. Rather, it seeks defense and indemnity for property damage that [the bakery], a third party, alleged that it suffered because of a defect in the freezer. Indeed, in George A. Fuller Co. (200 AD2d 255), on which defendant places much reliance, the damage occurred to the property upon which the contractor performed the work – that is, to the work product itself. Plaintiff, by contrast, seeks coverage for the damage to the cakes, not to the freezer. This damage is precisely the kind that plaintiff’s CGL policy contemplated, and therefore, the complaint properly alleges an “occurrence” within the meaning of the policy … . [the bakery’s]  loss of use of the facility specifically built to house the freezer is also covered under the policy, since “property damage” is defined to include “[l]oss of use of tangible property that is not physically injured.”  I.J. White Corp v Columbia Cas Co, 2013 NY Slip Op 02500, 651505/11, 8420, 1st Dept 4-16-13

 

/ , ,

Fall After Coverage Ceased Not Covered, Even though Dangerous Condition Alleged to Have Existed Before Termination of Coverage

After the premises was sold it was removed from coverage under a Travelers insurance policy.  Plaintiff slipped and fell on the property ten days after coverage was removed.  Supreme Court determined Travelers was obligated to defend because it was alleged the injury was related to a dangerous condition that existed before the property was sold (when it was insured by Travelers).  In reversing, the Second Department wrote:

Here, the subject insurance policy, read as a whole, clearly and unambiguously provides that the duty to defend and indemnify will attach only to bodily injury caused by an “occurrence” that is covered by the policy and that occurs during the policy period … .Accordingly, Travelers made a prima facie showing of its entitlement to judgment as a matter of law by establishing that the bodily injury for which the plaintiff seeks a defense and indemnification occurred after the premises had been removed from coverage … .Contrary to the plaintiff’s contention, the … allegation that the accident was caused by a dangerous condition that existed on the premises before it was removed from coverage does not obligate Travelers to defend and indemnify it. Since the policy predicates coverage upon the sustaining of bodily injury during the policy period, it is immaterial that the negligent acts which allegedly caused the occurrence took place while the policy covering the premises was still in effect … .  Jericho Atrium Assoc v Travelers Prop Cas Co of Am, 2013 NY Slip Op 03461, 2nd Dept, 5-15-13

SLIP AND FALL

/

12 to 15 Inch Drop Not a “Hazardous Opening” and Did Not Trigger Ramp or Stairway Requirement 

The First Department, in this Labor Law 241 (6) action, determined that a 12 to 15 inch drop from the work area to a subfloor did not constitute a “hazardous opening” and did not trigger the “stairways, ramps or runways” requirement (re: the Industrial Code):

Industrial Code (12 NYCRR) § 23-1.7(b)(1) is inapplicable. The record indicates that plaintiff was injured after he stepped off the edge of the work area to the subfloor 12 to 15 inches below, which is not considered a “hazardous opening” within the meaning of 12 NYCRR 23-1.7(b) … .

12 NYCRR 23-1.7(f) is also inapplicable. There is no basis in the record for any claim that the “[s]tairways, ramps or runways” identified in section 23-1.7(f) were required, given plaintiff’s testimony that the subfloor was only approximately 12 to 15 inches below the first floor from which he fell ….  Francescon v Gucci Am, Inc, 2013 NY Slip Op 02470, 9774, 114399/01 590019/02 590139/06 590372/06, 1st Dept, 4-11-13

 

/ ,

Termination of Deputy Sheriff by Sheriff after Hearing Officer Recommended Suspension Upheld

In up holding the termination of petitioner, a deputy sheriff correction officer, after a disciplinary hearing officer recommended only suspension, the Third Department wrote:

Here, petitioner was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge. The Sheriff noted that his decision to terminate petitioner’s employment was based, in large measure, upon the fact that, as a correction officer, petitioner was required to handle the most difficult and sometimes dangerous individuals and that “[d]isrespect and brutality of prisoners cannot and will not be tolerated.” Even if there is mitigating evidence that could support a different result –  such  as petitioner’s otherwise unblemished record of service during his 10 years as a correction officer – we may not substitute our judgment for that of the Sheriff ….Considering petitioner’s position as a correction officer and a Sheriff’s Emergency Response Team member and the serious nature of petitioner’s misconduct – an assault of a handcuffed inmate who petitioner was supervising at the time – as well as petitioner’s failure to take responsibility for his actions, the decision to terminate his employment  does not shock our sense of fairness … .  Matter of Knox v VanBlarcum…, 515471, 3rd Dept, 4-11-13

 

 

/

“Out-of-Title” Work Did Not Warrant Higher Pay

Petitioner was a sergeant at Butler Alcohol and Substance Abuse Correctional Facility and he alleged he was assigned as shift supervisor, requiring him to perform the work of a correction lieutenant.  In upholding a determination that petitioner’s “out-of-title” work did not entitle him to more pay, the Third Department noted:

While Civil Service Law § 61 (2) seemingly provides an “unqualified prohibition against nonemergency out-of-title work,1 case law has made the standard somewhat more flexible based on practicality” ….   “Not all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to petitioner[‘s] title[] and/or  are similar in nature to, or a reasonable outgrowth of, the duties listed in petitioner[‘s] job specifications” … . “‘[A]n employee’s performance of overlapping functions of an absent supervisor has not been found to establish a violation of Civil Service Law § 61 (2) where such functions were substantially similar to those detailed in his or her job description'” … .  Matter of New York State Correctional Officers … v Governor’s Office of Employee Relations, et al, 515409, 515410, 3rd Dept, 4-11-13

 

 

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