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Question of Fact About Whether Solar Panels Violate a Restrictive Covenant Precluded Dismissal of Complaint 

In a decision by Justice Spain, the Third Department reversed the dismissal of a complaint alleging that solar panels installed on defendants’ residential property violated a restrictive covenant.  The Third Department wrote:

We reach a different conclusion, however, with respect to plaintiff’s assertion that the panels  violate the  second restrictive covenant in the deeds, which states: “Said premises shall not be used for the storage of building materials, automobiles  or automobiles  parts, nor  shall any  nuisances  be maintained on said premises, which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants”   (emphasis added).   We find that plaintiffs have alleged facts that could support a cause of action based on violation of this covenant. Specifically, we  hold that it was sufficient for plaintiffs to allege that the installation of six, 14-foot tall, 8-foot wide solar panels within a neighborhood that carries many aesthetic restrictions is, within the meaning of the restrictive covenant, a nuisance “which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants.”  Faler v Haines, 515349, 3rd Dept 3-28-13

 

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No Need for Consent of Biological Father in Adoption Proceeding

In a decision by Justice Rick, the Third Department affirmed the adoption of a child without the consent of the biological father:

A  biological father’s consent to adopt a child over six months old  who was  born out of wedlock is required only if the father “maintained substantial and  continuous contact with the child as manifested by”  payment  of reasonable  child support and either monthly visitation or regular communication with the child or custodian (Domestic Relations Law  § 111 [1] [d]).”Only after the [biological] father establishes his right of consent to the adoption, by satisfying both the support and  communication provisions of the statute, does the court proceed to determine whether he has forfeited that right by evincing ‘an intent to forego his . . . parental . . . rights and  obligations'” as outlined in Domestic Relations Law  § 111 (2) (a)… . Matter of John Q v Erica R, 514216, 3rd Dept 3-28-13

 

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Court Improperly Amended Allegations in Neglect Petition

The Third Department, in a decision by Justice McCarthy, determined Family Court improperly amended the allegations in a neglect petition:

On this record, summary judgment was improperly granted. Significantly, the  petition as  filed only  alleges that respondent neglected the children as a result of the events surrounding respondent’s March  2011 arrest. Nevertheless, Family Court granted the petition based on  “amplified” allegations of neglect that it found related to the father’s alleged untreated mental illness. No amended petition was filed nor was respondent given an opportunity to amend his answer. While a court may amend the allegations in a neglect proceeding  “to conform  to the proof[,]. . . in such case the respondent shall be given reasonable time to prepare to answer the amended allegations” (Family Ct Act § 1051 [b] …). Matter of Aiden XX, 514147, 3rd Dept 3-28-13

 

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Criteria for Grant of Visitation to Grandparent When Both Parents Alive

In affirming the grant of visitation to a grandparent (where both parents are living), the Third Department, in a decision by Justice Egan, wrote:

Where a grandparent seeks visitation and, as is the case here, both of the child’s parents are living, Family Court first must ascertain whether “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to confer standing … . “An essential part of the standing inquiry is the nature and extent of the existing grandparent-grandchild relationship . . . [as well as] the basis for the parents’ objection to visitation” ….  Should Family Court determine that the grandparent has standing to seek visitation, the question then becomes whether such visitation is in the child’s best interests …. Inasmuch as Family Court had the advantage of assessing the witnesses’ testimony and demeanor firsthand, its credibility determination “should not be set aside if it is supported by a sound and substantial basis in the record” …. Matter of Laudadio, 514069, 3rd Dept 3-28-13

 

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Okay for Expert to Rely On Information from Social Workers Who Are Not Subjected to Cross-Examination

The Third Department, in a decision by Justice Peters, determined that an expert in a custody matter could rely on information provided by caseworkers who where not subject to cross-examination:

Initially, both the mother and the attorney for the children contend that the opinion testimony of Elizabeth Schockmel, the court-appointed forensic psychologist, should have been stricken because her opinion was based in part upon information she obtained from Department of Social Services caseworkers who were not subject to cross-examination.  We disagree. “[T]he professional reliability exception to the hearsay rule . . . enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” … . Here,   Schockmel testified – without contradiction – that information obtained from  collateral sources is commonly  relied upon  within her profession when  conducting a forensic psychological evaluation in the context of a custody proceeding …. Moreover, her opinion was  principally based upon  information she obtained from  her extensive interviews with the mother, father and  children, with the collateral source information serving as but “a link in the chain of data” that assisted her in forming her opinion … . Accordingly,  Schockmel’s expert opinion testimony was  properly admitted.  Matter of Greene v Robarge, 512987, 3rd Dept 3-28-13

 

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District Attorney’s Prosecution of a Case in Which the Complainant Was a Sitting Judge Created the Appearance of Impropriety—A Special Prosecutor Should Have Handled the Case

A sitting City Court judge was the complainant in a harassment case.  A judge and a defense attorney from another county were appointed to handle the case.  The defense attorney made a motion to have a special prosecutor appointed as well because of the relationship between the District Attorney’s Office and the complainant.  That request was denied and the denial was affirmed on appeal to County Court.  The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed, finding the District Attorney’s Office’s involvement in the case created the appearance of impropriety:

Here, while we do not find that any actual impropriety occurred, there is an unacceptably great appearance of impropriety – the appearance that the District Attorney’s Office refused to accept a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate. The complainant was a City Court Judge who had the authority to preside over cases involving this District Attorney’s office, and the criminal charges were unrelated to her official position, so that her status as a judge should not have been a factor in the resolution of the case. Nor was there anything unique or unusual about the charges, since they involved communications between two people who had formerly been in an intimate relationship – a scenario frequently seen in harassment cases. However, despite protracted and repeated plea negotiations, the District Attorney’s office did not offer defendant a reduced charge or agree to a plea that included a favorable sentence, such as an ACD, community service, or the like. While this alone would not be enough to raise an appearance of impropriety, there are other aspects of the record that do. Defendant’s original counsel from the Public Defender’s office, who had represented defendants in cases involving this District Attorney’s office for more than a decade, averred that he had never before seen the office take such a hard-line position in a case involving comparable charges and a similar defendant. Although provided ample opportunity to respond, the District Attorney’s office replied with nothing more than conclusory denials, failing to rebut the allegations with even a single example of a comparable case it had similarly refused to resolve with an ACD or a plea to a violation. Because the District Attorney’s office failed to take steps to dispel the appearance of inappropriate disparate treatment, we conclude that this is one of those rare cases in which a significant appearance of impropriety was created, requiring disqualification.  People v Adams, 47, CtApp 3-28-13

 

 

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Relation-Back” and “Savings Clause” Statutes Explained

The First Department discussed the difference between the relation-back doctrine of CPLR 203(f) and the savings clause of CPLR 205(a):

In a prior appeal in this action, we held that plaintiffs could not utilize the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject agreements’ condition precedent to commencing an action against Impact, since the doctrine is dependent upon the existence of a valid preexisting action .. . However, on this appeal, we find that the savings clause of CPLR 205(a) does not bar plaintiffs’ action, since the statute was “created to serve in those cases in which the prior action was defective and so had to be dismissed” … . The dismissal of the prior action for plaintiffs’ failure to comply with a condition precedent was not a judgment on the merits …, and plaintiff commenced a new action within the six-month period required by CPLR 205(a).  Southern Wine & Spirits of Am, Inc v Impact Envtl Eng’g, PLLC, 2013 NY Slip Op o2i46, 9651, 650083/10, 1st Dept 3-28-13

 

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Judicial Hearing Officer Does Not Have Power to Find Non-Witness Guilty of Contempt

The First Department noted that a judicial hearing officer (JHO) does not have the power to find any person in contempt except a witness before him:

While CPLR 4311 and 4317(a) give a referee, upon consent of the parties, the power to hear and determine all trial issues before the court, CPLR 4301 specifically precludes a referee and, thus, a JHO from “adjudg[ing] any person except a witness before him guilty of contempt.” While [the JHO] had the power to make factual findings concerning violation of his orders, he was without power to adjudge persons in contempt because neither contempt finding involved behavior occurring before him … .  Hoffman v Helm Capital Group, Inc, 2013 NY Slip Op 02141, 603109/08, 9537A, 1st Dept 3-28-13

 

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Five-Day Time-Limit On Motion to Dismiss Based Upon Erroneous Information Provided by Prosecutor to Defendant Which Caused Defendant to Refrain from Testifying Before the Grand Jury

The Third Department, in a decision by Justice Peters, reversed County Court’s dismissal of an indictment based on the prosecutor’s (erroneously) telling the defendant he would be subject to cross-examination about a pending charge if he chose to testify before the grand jury.  There is a five-day time limitation for a motion to dismiss on that ground.  Defendant’s motion was deemed untimely:

We agree with the People that County Court erred in dismissing the indictment on the ground that defendant was deprived of his statutory right to testify before the grand jury. County  Court ruled that the prosecutor’s misstatement of law with respect to the questioning of defendant about  the unrelated pending  charge  for purposes  of  impeaching  his credibility caused defendant to withdraw  his request to testify before the grand jury, thereby  effectively depriving him  of  his right to testify under CPL 190.50 (5). Any alleged violation of that right, however, must be raised by  a motion to dismiss the indictment, pursuant to either CPL 170.50 or 210.20, no later than five days after arraignment on the indictment or such challenge will be deemed waived … .  People v Sutherland, 105155, 3rd Dept 3-28-13

 

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Failure to Verify Weight of Cocaine May Constitute Ineffective Assistance

In a decision by Justice Lahtinen, the Third Department determined the defendant had raised a question whether he was afforded ineffective assistance of counsel because counsel did not independently verify the weight of the cocaine he was charged with possessing.  The matter was sent back to the motion court for a hearing on defendant’s CPL 440 motion to vacate his conviction.  The Third Department wrote:

While failing to independently verify the weight of drugs does not necessarily  constitute  ineffective assistance …, this record contains sufficient factual issues as to whether  defendant  was  affirmatively given incorrect information by his counsel on an issue assertedly important in his decision to accept the plea and, as such, a hearing is required on his claim of ineffective assistance of counsel … People v Johnson, 103457, 3rd Dept 3-28-13

 

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