You are here: / FATHER DID NOT DEMONSTRATE THE CHILD WAS CONSTRUCTIVELY EMANCIPATED; THEREFORE...

Search Results

/ ,

FATHER DID NOT DEMONSTRATE THE CHILD WAS CONSTRUCTIVELY EMANCIPATED; THEREFORE FATHER’S SUPPORT OBLIGATION SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not meet his burden of proof in his attempt to demonstrate the constructive emancipation of the child such that his support obligation should be terminated:

“It is fundamental public policy in New York that parents are responsible for their children’s support until age 21” … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” … . “[W]here it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent” … . “The burden of proof as to emancipation is on the party asserting it” … .

Here, contrary to the father’s contention, the evidence adduced at the hearing failed to demonstrate that he made serious efforts to maintain a relationship with the child during the relevant time period, or that the child actively abandoned her relationship with him … . Matter of Rosenkrantz v Rosenkrantz, 2023 NY Slip Op 05609, Second Dept 11-8-23

Practice Point: The proof requirements for constructive emancipation of a child were not met; criteria explained.

 

/ , ,

MOTHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED UPON FATHER’S FAILURE TO APPEAR; FATHER’S ATTORNEY EXPLAINED FATHER’S ABSENCE AND REQUESTED AN INQUEST; AN APPEAL FROM AN ORDER ENTERED UPON A PARTY’S DEFAULT BRINGS UP FOR REVIEW ONLY THE CONTESTED MATTERS BEFORE THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition for sole custody should not have been granted upon father’s failure to appear. Father’s attorney explained father’s absence and asked that the matter be set down for an inquest. The Second Department noted that, upon appeal from an order made upon a party’s default, only the contested matters before the trial court can be heard:

“A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . Generally, the court’s determination should be made only after “a full and plenary hearing and inquiry” … or, where a party failed to appear, after an inquest … .

Here, the Family Court granted the mother’s petition to modify the prior order, upon the father’s default, without receiving any testimony or other evidence, despite the fact that the father’s attorney proffered a reasonable explanation for the father’s absence and that the father did not have a history of missing court dates … . Under the circumstances, the court improvidently exercised its discretion in denying the application of the father’s attorney to set the matter down for an inquest … .  Matter of Otero v Walker, 2023 NY Slip Op 05607, Second Dept 11-8-23

Practice Point: Generally where a party defaults in a custody matter, an inquest should be held before any ruling.

Practice Point: Upon appeal from an order made upon a party’s default, only the contested matters before the trial court come up for review.

 

/ ,

THE FOIL REQUEST FOR THE NUMBER AND LOCATION OF LICENSE PLATE READERS (LPR’S) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the FOIL request for the location of license plate readers (LPR’s) should have been granted. The majority decision and the dissent include comprehensive discussions of the relevant caselaw which are far too extensive to fairly summarize here:

In light of the presumption of accessability and the narrow interpretation we are required to apply to a claimed exemption, under the circumstances of this case, we find that the respondents failed to sustain their burden of proving that the law enforcement records exemption pursuant to Public Officers Law § 87(2)(e)(iv) applied to the records pertaining to the number and location of the LPRs sought by the petitioner’s request … . Matter of Lane v Port Wash. Police Dist., 2023 NY Slip Op 05605, Second Dept 11-8-23

Practice Point: Here the majority’s and dissent’s discussion of FOIL request for the number and location of license plate readers (LPR’s), which the majority held should have been granted, includes a comprehensive discussion of the relevant caselaw.

 

/ ,

THE UNIVERSITY REVIEW BOARD’S FINDING THAT PETITIONER VIOLATED THE STUDENT CODE BY ENGAGING IN SEXUAL MISCONDUCT REVERSED, VIOLATIONS DISMISSED, RECORD EXPUNGED; THERE WAS A DISSENT (SECOND DEPT). ​

The Second Department, over a dissent, reversing the University Review Board,  determined it was not demonstrated that petitioner, a student at Stony Brook University, violated the Student Code by engaging in sexual misconduct. The only issue before the Board and the court was whether S.G., a fellow student, consented to sex. The facts are far to detailed to fairly summarize here. The majority concluded the evidence supported S.G.’s “affirmative consent” to sex. The Student Code violations were dismissed and all references to the Board’s finding are to be expunged from the petitioner’s academic record. Matter of P. C. v Stony Brook Univ., 2023 NY Slip Op 05604, Second Dept 11-8-23

 

/ ,

HERE THE DEFENDANT SELF-STORAGE FACILITY DID NOT NOTIFY PLAINTIFF OF THE CHANGED SALE-DATE AND DISPOSED OF PLAINTIFF’S PROPERTY TO A THIRD PARTY AT THE TIME OF THE SALE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT BASED ON DEFENDANT’S VIOLATION OF THE NOTICE PROVISIONS OF THE LIEN LAW AND DEFENDANT’S SUBSEQUENT CONVERSION OF THE PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment against defendant self-storage facility based upon defendant’s violation of the notice provisions of the Lien Law and conversion of the property:

… [T]he defendants failed to satisfy the notice requirements of Lien Law § 182(7). Specifically, the notice sent to the plaintiff failed to “include the time and place” of the sale of his property … , because the sale did not occur on the date set forth in the notice sent to the plaintiff, but was instead rescheduled without notice to him. …

… [A]lthough the Supreme Court properly determined that the defendants had a valid statutory lien and possessory interest in the plaintiff’s property (see Lien Law § 182[6]), such a showing is not sufficient to defeat the plaintiff’s cause of action for conversion in the case at bar. The plaintiff’s cause of action is not predicated upon the defendants’ unauthorized refusal to relinquish possession of the property upon his demand … , but rather upon the defendants’ unauthorized disposition of the property to a third party without proper notice … . Magomedov v Self Stor. Mgt., LLC, 2023 NY Slip Op 05601, Second Dept 11-8-23

Practice Point: To sell property held by a self-storage facility, the Lien Law requires that the property-owner be notified of the time and date of the sale. Here the date of the sale was changed and plaintiff was not notified of the change. The self-storage facility was liable for the Lien Law violation and for conversion (the sale if the property).

 

/ ,

US BANK AS THE CURRENT ASSIGNEE OF THE MORTGAGE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN THIS ACTION TO DISCHARGE AND CANCEL THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined US Bank, the current assignee of the mortgage, should have been allowed to intervene in this action to cancel and discharge the mortgage pursuant to RPAPL 1501(4):

“Upon a timely motion, a person is permitted to intervene as of right in an action involving the disposition of property where that person may be adversely affected by the judgment” (… see CPLR 1012[a][3]). Additionally, “a court, in its discretion, may permit a person to intervene, inter alia, when the person’s claim or defense and the main action have a common question of law or fact” (… see CPLR 1013). “Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings” … .

Here, in support of its motion, U.S. Bank submitted evidence demonstrating, among other things, that it took possession of the note in June 2018, prior to the commencement of this action, and that it was the current assignee of the mortgage. Under the circumstances, U.S. Bank’s submissions were sufficient to demonstrate that it had a real and substantial interest in the outcome of this action … . Maggi v U.S. Bank Trust, N.A., 2023 NY Slip Op 05600, Second Dept 11-8-23

Practice Point: A timely motion to intervene should be granted where the intervenor has a real and substantial interest in the outcome.

 

/ ,

PLAINTIFF TRIPPED OVER A PIECE OF PLYWOOD COVERING A SMALL HOLE; DEFENDANT DID NOT DEMONSTRATE THAT IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION; THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff alleged he tripped and fell when his foot stuck a piece of plywood covering a hole. Defendant did not demonstrate a lack of constructive notice of the condition:

… [T]he defendant failed to show, prima facie, that it lacked constructive knowledge of the alleged dangerous condition … since it did not submit any evidence that the plywood was a latent defect that could not have been discovered upon a reasonable inspection … . Therefore, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 200. Freyberg v Adelphi Univ., 2023 NY Slip Op 05589, Second Dept 11-8-23

Practice Point: Labor Law 200 causes of action are analyzed under standard negligence principles. Even though the Labor Law 241(6) cause of action was properly dismissed because the Industrial Code provision did not apply to the plywood covering a small hole, the Labor Law 200 cause of action should not have been dismissed because the defendant simply did not address it. To warrant dismissal the defendant was required to demonstrate it did not have constructive knowledge of the alleged tripping hazard.

 

/ , , ,

PLAINTIFF REAL ESTATE BROKER’S CAUSES OF ACTION (SEEKING THE REAL ESTATE COMMISSION) AGAINST THE BUYERS WHO SUBSEQUENTLY BOUGHT THE PROPERTY USING A DIFFERENT BROKER SHOULD HAVE BEEN DISMISSED; THE QUANTUM MERUIT, TORTIOUS INTERFERENCE WITH CONTRACT AND FRAUD CAUSES OF ACTION WERE NOT MADE OUT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the quantum meruit, tortious interference with contract and fraud causes of action should have been dismissed. Plaintiff, a real estate broker, had made an offer on sellers’ property on behalf of the Sorkin defendants which was rejected. Subsequently the Sorkin defendants, using a different broker, made another offer on the sellers’ property which was accepted. Plaintiff sued for the brokerage commission. The tortious interference with contract cause of action should have been dismissed because the Sorkins did not procure a breach of contract. The quantum meruit cause of action should have been dismissed because plaintiff was not a proximate, as opposed to a remote and indirect, link to the consummation of the sale. The fraud cause of action should have been dismissed because plaintiff could not have detrimentally relied on any alleged misrepresentation by the Sorkins that they were not longer interested in the property:

… [T]he Sorkin defendants demonstrated … that the plaintiff’s sole efforts consisted of some brief contacts with the sellers and the Sorkin defendants, and that after the sellers rejected the offers obtained by the plaintiff from the Sorkin defendants, no further negotiations took place between the plaintiff and the sellers regarding a possible sale to the Sorkin defendants. Subsequently, the sellers negotiated a sale of the subject property to the Sorkin defendants through a different broker, and the sale was consummated. Consequently, the Sorkin defendants established, prima facie, that the plaintiff was “not the direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction of the sellers to the buyers and the consummation of the sale” … . * * *

[Re: fraud:] Even if the Sorkin defendants misrepresented to the plaintiff that they were no longer interested in purchasing the subject property, there could be no “specific detrimental reliance by plaintiff on this misrepresentation, inasmuch as plaintiff could not have compelled the [Sorkin defendants] to speak with plaintiff” … . City RE Group, LLC v 2633 Ocean Realty, LLC, 2023 NY Slip Op 05586, Second Dept 11-8-23

Practice Point: Although plaintiff real estate broker briefly introduced the buyers to the sellers and submitted an offer which was rejected, plaintiff could not sue for the real estate commission when the buyers submitted another offer through another broker which was accepted. Plaintiff could not make out causes of action for quantum meruit, tortious interference with contract or fraud (based upon the allegation the buyers misrepresented to plaintiff that the were no longer interested in the property).

 

/ ,

THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF BANK HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO BUSINESS RECORDS WHICH WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action. The affidavit which purported to establish standing referred to business records which were not attached:

… [T]he plaintiff failed to attach the business records upon which Delpesche [an employee of the loan servicing company] relied upon in his affidavit. “Although the foundation for . . . admission of a business record [usually is] provided by the testimony of the custodian, [the author or some other witness familiar with the practices and procedures of the particular business,] ‘it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'” … . “‘Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissible hearsay'” … . Since the plaintiff failed to attach the business records upon which Delpesche relied in his affidavit, his assertions based upon those records constituted inadmissible hearsay … . Wells Fargo Bank, N.A. v Carrington, 2023 NY Slip Op 05632, Second Dept 11-8-23

Practice Point: Where an affidavit refers to and relies on business records which are not attached, the affidavit is inadmissible hearsay.

 

 

 

/ ,

PLAINTIFF RAISED QUESTIONS OF FACT ABOUT THE EXISTENCE OF AN AGREEMENT WITH DEFENDANT ABOUT EACH HAVING 50% OWNERSHIP OF TWO RESTAURANTS; DEFENDANT USED THE RESOURCES FROM THOSE RESTAURANTS TO OPEN A THIRD; PLAINTIFF’S CONSTRUCTIVE TRUST AND UNJUST ENRICHMENT CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, in her affidavit, had raised questions of fact about the existence of a constructive trust and whether defendant was unjustly enriched. Plaintiff and defendant were in a romantic relationship. Plaintiff alleged she and defendant agreed two restaurants would be jointly owned but would be in defendant’s name for tax purposes. After the relationship ended, defendant had used the resources from the two restaurants to open a third:

“To prove unjust enrichment, a party must show that the other party was enriched at his or her expense, and it is against equity and good conscience to permit that person to retain what is sought to be recovered” … . In order to impose a constructive trust, a litigant is generally required to establish four elements by clear and convincing evidence: “(1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment” … . However, the four “elements . . . serve only as a guideline, and a constructive trust may still be imposed . . . provided that those factors are substantially present” … . Further, there is no requirement that the alleged promise be expressly stated; rather, “a promise may be implied or inferred from the very transaction itself” … . Courts have also “extended the transfer element to include instances where funds, time and effort were contributed in reliance on a promise to share in some interest in property, even though no transfer actually occurred” … . Canas v Oshiro, 2023 NY Slip Op 05585, Second Dept 11-8-23

Practice Point: Here plaintiff and defendant were in a romantic (i.e., a confidential) relationship. The alleged oral agreement that they each had a 50% interest in two restaurants supported plaintiff’s action for constructive trust and unjust enrichment based upon defendant’s using the resources from the restaurants to open a third.

 

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