You are here: / AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION...

Search Results

/ , , ,

AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noting a split among the appellate-division departments, determined an oral stipulation was invalid pursuant to Domestic Relations Law 236(B)(3):

… [T]he parties’ oral stipulation is not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). Although plaintiff’s attorney stated at the time of the oral stipulation that she “would prefer just to do the oral stipulation,” the statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” … . We have repeatedly held that oral stipulations do not comply with the statute … . …

… Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff.[90 NY2d 135-136] … . Cole v Hoover, 2023 NY Slip Op 03103, Fourth Dept 6-9-23

Practice Point: An oral stipulation is invalid pursuant to Domestic Relations Law 236(B)(3) and cannot be ratified. There is now an even split among the appellate division departments on this issue.

 

/ , , , ,

THE CAUSES OF ACTION FOR A STIGMA-PLUS 43 USC 1983 VIOLATION AND DEFAMATION SHOULD HAVE BEEN DISMISSED; THE CAUSES OF ACTION WERE BASED UPON A STATEMENT BY THE SCHOOL DISTRICT ACCUSING PLAINTIFF OF DISREGARDING COVID POLICY AND ENDANGERING STUDENTS; PLAINTIFF DID NOT SUFFER ECONOMIC HARM AND THE STATEMENT WAS PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the stigma-plus 42 USC 1983 cause of action and the defamation cause of action should have been dismissed. The action was brought by plaintiff, a school football coach, based upon a letter circulated by the school district accusing plaintiff of disregarding COVID precautions and recklessly exposing students to the virus. Initially the district was not going to renew plaintiff’s contract but ultimately plaintiff was not terminated:

A stigma-plus cause of action requires a plaintiff to establish “(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s status or rights” … . Because a defamatory statement, standing alone, does not amount to a constitutional deprivation, “the ‘plus’ imposed by the defendant[s] must be  specific and adverse action clearly restricting the plaintiff’s liberty—for example, the loss of employment” … . * * *

… [T]he complaint alleges that the District superintendent, whose role included termination of employees like plaintiff, circulated the allegedly defamatory letter. A school superintendent is a principal executive whose statements may be protected by absolute privilege … . Further, based on the allegations in the complaint, we conclude that “the [superintendent] was acting wholly within the scope of his duties” when making the relevant statements  … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2023 NY Slip Op 03102, Fourth Dept 6-9-23

Practice Point: Here a statement that plaintiff school football coach disregarded COVID policy and endangered students did not support the stigma-plus 42 USC 1983 cause of action because plaintiff did not suffer economic harm and did not support the defamation cause of action because the statement was privileged.

 

/ ,

THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN THIS EMERGENCY-VEHICLE TRAFFIC ACCIDENT CASE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others in this emergency-vehicle traffic accident case. Defendant police officer was responding to a call concerning a burglar alarm and was driving without emergency lights at 70 mph on a sparsely populated rural two-lane road with a 55 mph speed-limit when plaintiff attempted a left turn and the collision occurred:

… [D]fendant submitted the deposition testimony of plaintiff, who testified that as plaintiff approached the intersection from the two-lane, hilly, wet road, he did not see any other vehicles when he activated his left turn signal. Plaintiff testified that he began his left turn and was already in the process thereof when he first noticed defendant’s vehicle approaching his vehicle. Contrary to the dissent’s position, plaintiff maintains that defendant failed to yield to plaintiff’s right-of-way and did not concede the issue. Plaintiff further testified that defendant’s vehicle was coming toward his vehicle at a “high rate of speed” and did not have on any headlights, siren or flashing lights. While there was evidence that defendant attempted to brake before colliding with plaintiff’s vehicle, there was undisputed evidence that defendant’s vehicle was traveling 70 miles per hour in a 55 mile per hour zone just prior to the collision and that defendant was still traveling 47 miles per hour at the time of impact with plaintiff’s vehicle. Defendant submitted his own deposition testimony which established that at the time of the accident defendant was responding to a police dispatch call of a “possible burglar alarm.” Defendant further testified that he was not sure whether he was responding to an emergency situation and only knew at the time that he was responding to “an alarm” at an address. 

From the dissent:

… [T]he evidence submitted by defendant established that he was traveling no more than 70 miles per hour when responding to the emergency, and that the posted speed limit in the area is 55 miles per hour. Data retrieved from the “black box” in the police vehicle showed that defendant started slowing down five seconds before the collision, decreasing his speed to 47 miles per hour by the time of impact. It is well settled that speeding by a police officer while operating an emergency vehicle during an emergency operation “certainly cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3)” … and the record here reveals no other conduct allegedly engaged in by defendant that made it ” ‘highly probable that harm would follow’ ” … . Gernatt v Gregoire, 2023 NY Slip Op 03094, Fourth Dept 6-9-23

Practice Point: Even though plaintiff was convicted of failing to yield the right-of-way, the majority held there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others. The officer was driving 70 mph on a sparsely populated rural road with a 55 mph speed limit, without emergency lights, when plaintiff attempted a left turn. The two-justice dissent argued the officer’s speeding was not enough to raise a question of fact.

 

/

THE TAKING BY EMINENT DOMAIN OF PETITIONER’S DECOMMISSIONED ELECTRIC GENERATING STATION AND WATER INTAKE STRUCTURES ON THE NIAGARA RIVER SERVED A PUBLIC PURPOSE; THE DISSENT ARGUED THE TOWN SHOULD NOT BE ALLOWED TO TAKE PROPERTY AND THEN USE IT FOR EXACTLY THE SAME PURPOSE FOR WHICH THE PETITIONER IS NOW USING IT, I.E., ALLOWING BUSINESSES ACCESS TO INEXPENSIVE RAW WATER (FOURTH DEPT).

The Fourth Department, over a dissent, confirmed the taking by eminent domain of petitioner’s property, a decommissioned coal-fired electric generating station and water intake structures on the Niagara River. Petitioner had been allowing businesses to use the water intake structures for access to inexpensive raw water. The dissent argued the town should not be able to take property and then use the property in exactly the same way petitioner is using it now:

We reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose (see EDPL 207 [C] [4]). “What qualifies as a public purpose or public use is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage” … . Here, the Town’s condemnation of the property serves the public uses of, inter alia, revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town … . 

From the dissent:

In my view, the takings clauses of the Federal and State Constitutions do not permit the government to take land through eminent domain and use it for the exact same purpose for which the landowner is already using it. Matter of Huntley Power, LLC v Town of Tonawanda, 2023 NY Slip Op 03089, Fourth Dept 6-9-23

Practice Point: The taking by eminent domain of the water intake structures for a decommissioned electric generating station on the Niagara River served a public purpose, i.e., providing businesses with access to inexpensive raw water. The dissent argued petitioner is using the property for exactly that purpose now, rendering the taking invalid.

 

/ , , ,

DEFENDANT PHYSICIAN’S AFFIDAVIT DID NOT PROVE PLAINTIFF’S DECEDENT WAS INFORMED OF THE PRESENCE OF A FOREIGN BODY IN HIS PELVIS; THE AFFIDAVIT RELIED ON INSUFFICIENT EVIDENCE OF THE DEFENDANT’S CUSTOM OR HABIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s decedent’s primary care physician (PCP) did not prove whether or when the decedent was informed of the foreign object (a sponge) which was left in decedent’s pelvis after surgery. The PCP’s affidavit relied on custom or habit evidence, which was not sufficient. Therefore defendants did not prove whether or when decedent was informed of the foreign object. The complaint should not have been dismissed as time-barred:

“[E]vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again” … . “The applicability of this doctrine is limited to cases where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances . . . as opposed to conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances” … .

In order to establish the admissibility of the PCP’s habit evidence, defendants were required to establish that the PCP engaged in a routine practice of informing patients of the results of their diagnostic procedures and that his practice did not vary from patient to patient … . We conclude that defendants failed to do so. The affidavit of decedent’s PCP, submitted in support of the motions, explicitly concedes that the manner in which he informs patients of the results of diagnostic procedures varies. * * *

Inasmuch as defendants failed to establish that decedent was or should have been aware of the presence of the foreign body more than one year prior to commencing this action, the burden never shifted to plaintiff to aver evidentiary facts establishing that the limitations period had not expired, that it was tolled, or that an exception to the statute of limitations applied … . Baker v Eastern Niagara Hosp., Inc., 2023 NY Slip Op 03090, Fourth Dept 6-9-23

Practice Point: The evidence of defendant physician’s custom or habit of informing patients of the presence of a foreign object was insufficient. Therefore this medical malpractice action should not have been dismissed as time-barred. Defendant did not prove whether or when decedent was informed of the foreign object.

 

/ , ,

THE LOCAL LAW WHICH DISQUALIFIES CANDIDATES WHO HAVE CERTAIN FELONY CONVICTIONS SHOULD NOT HAVE BEEN INTERPRETED TO APPLY ONLY TO CONVICTIONS AFTER THE ENACTMENT OF THE LOCAL LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Local Law which disqualified candidates who have certain felony convictions from running for city council and other officers should not have been interpreted to apply only to convictions after the enactment of the Local Law. Given the importance of the law, the proceeding should not have been converted to a summary judgment motion and decided on an expedited schedule because of the impending primary election:

Under the circumstances presented, where plaintiffs, without good reason, waited until shortly before the upcoming June 27, 2023 Democratic primary election to bring this action seeking a determination as to the constitutional and procedural validity of Local Law 15, enacted in February 2021, and to bring this motion seeking injunctive relief barring its enforcement, on an expedited basis that would not permit meaningful review of the important issues and that necessarily would result in electoral disruption, the court should not have converted, with limited notice to the City, the motion to one for summary judgment and resolved the merits of plaintiffs’ claims on an expedited schedule. * * *

We also find that the court, in prematurely resolving the merits of plaintiffs’ challenges, erred to the extent it construed, against the statutory reading proffered by both parties in the motion court, Local Law 15 as not disqualifying candidates based on the specified felony convictions where the convictions predated the law’s enactment in February 2021. A reading of the statutory language that the law applies to any person who “has been convicted” makes clear, on its face, that the law applies to both pre- and post-enactment convictions and, as the City shows, the legislative comments entirely support that reading, as do the subsequent practices of the Board of Elections. Martinez v City of New York, 2023 NY Slip Op 03073, First Dept 6-8-23

Practice Point: The matter should not have been converted to a summary judgment motion and determined on an expedited schedule because of the impending election. The Local Law which disqualifies candidates with certain felony convictions from running for local offices should not have been interpreted to apply only to convictions after the enactment of the local law.

 

/ , ,

​THE EMPLOYEE RESTRICTIVE COVENANTS (NONSOLICITATION AGREEMENTS) WERE PROPERLY ENFORCED; NINE OF DEFENDANT INSURANCE COMPANY’S CUSTOMERS FOLLOWED PLAINITFFS AFTER THEIR TERMIINATION; TWO-JUSTICE DISSENT (THIRD DEPT). ​

The Third Department, over a two-justice partial dissent, determined the defendant insurance company’s motion for summary judgment enforcing the nonsolicitation agreements were properly granted. Nine of defendant’s former customers followed plaintiffs after their termination from defendant’s employ:

… “[T]he application of the test of reasonableness of employee restrictive covenants focuses on the particular facts and circumstances giving context to the agreement” … . While such agreements are generally not favored, they can be “justified by the employer’s need to protect itself from unfair competition by former employees” … . “The employer has a legitimate interest in preventing former employees from exploiting or appropriating the goodwill of a client or customer, which had been created and maintained at the employer’s expense, to the employer’s competitive detriment” … . Here, when plaintiffs joined defendant’s insurance agency, neither had any prior experience in the insurance field, they were not licensed agents, nor did they have any clients or books of business of their own. As to the clients in question here, they were solicited, developed and serviced by defendant. As such, the accounts and clients are the product of defendant’s efforts, financial expenditures and goodwill, all of which defendant has a legitimate interest in protecting. Davis v Marshall & Sterling, Inc., 2023 NY Slip Op 03050, Third Dept 6-8-23

Practice Point: Here nine of the employer’s customers followed plaintiffs after their termination. Supreme Court properly enforced the nonsolicitation agreements. There was a two-justice dissent.

 

/ ,

​FAMILY COURT SHOULD HAVE HELD A LINCOLN HEARING TO DETERMINE THE WISHES OF THE CHILD, WHO WAS ABOUT TO TURN 16, IN THIS CUSTODY MODIFICATION PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the court should have held a Lincoln hearing in this modification of custody proceeding:

We find that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes … . At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. “[A] Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision” …  . The wishes of this soon-to-be 16-year-old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent …  . It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns” … . Matter of Samantha WW. v Malek XX., 2023 NY Slip Op 03052, Third Dept 6-8-23

Practice Point: Here it was an abuse of discretion to fail to hold a Lincoln hearing to determine the wishes of the child, who was nearly 16, in this custody modification proceeding.

 

/ ,

​ALTHOUGH A PURPOSE OF THE WATERSHED CORPORATION WAS TO ENSURE CLEAN DRINKING WATER FOR NEW YORK CITY; OTHER PURPOSES INCLUDED FOSTERING DEVELOPMENT; THEREFORE THE UPSTATE PROPERTY OWNED BY THE CORPORATION WAS NOT ENTITLED TO A CHARITABLE OR PUBLIC USE TAX EXEMPTION PURSUANT TO REAL PROPERTY TAX LAW 420-A (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the upstate property owned by the Catskill Watershed Corporation (petitioner) was not entitled to a charitable or public purpose exemption from the town’s property tax. Although a purpose of the corporation was to ensure clean drinking water for New York City, the fact that the purposes included economic development precluded the charitable or public purpose tax exemption pursuant to Real Property Tax Law (RPTL) 420-a:

… [P]etitioner’s certificate of incorporation expressly provides that it is formed for, among other things, “the exclusively charitable or public purposes of . . . aiding that part of the . . . [community in the Watershed] by attracting new commerce and industry to such area and by encouraging the development of, or retention of, commerce and industry in such area, and lessening the burdens of government and acting in the public interest.” These near-identical reasons were rejected by the Court of Appeals, which acknowledged that, even though a property may very well provide a laudable “public benefit,” where the overall use is “to further economic development and lessen the burdens of government, [such use] cannot be deemed ‘charitable’ within the meaning of section 420-a (1) (a)” … . Nor do we find convincing petitioner’s federal tax-exempt status, as “evidence of an organization’s section 501 (c) (3) status, by itself, does not create a presumption that the entity is entitled to a tax exemption under [RPTL 420-a]” — particularly given that the “IRS’s definition of what constitutes an exempt ‘charitable purpose’ is exceedingly broad” … . Matter of Catskill Watershed Corp. v Assessor of the Town of Middletown, 2023 NY Slip Op 03055, Third Dept 6-8-23

Practice Point: Even if a purpose of a corporation is to benefit the public (here the protection of drinking water), where other purposes are designed to foster development, the property owned by the corporation is not entitled to a charitable or public purpose exemption from property tax pursuant to RPTL 420-a.

 

/ ,

MOTHER’S PETITION FOR PERMISSION TO RELOCATE TO FLORIDA WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for permission to relocate to Florida with the children should have been granted:

“Taken as a whole, the mother’s testimony demonstrated . . . that the mother’s reasons for wanting to relocate were familial and economic and that the proposed relocation would likely enhance the lives of the mother and the child[ren] economically and emotionally” … . * * *

Although we recognize the importance of an ongoing relationship between the father and the children, the … proof reflects that the mother is, by far, the more involved parent and the primary caregiver, that the lives of the mother and the children would be enhanced by the relocation to Florida, that the children want to make that move, and that the mother is willing to facilitate significant visitation between the children and the father if it occurs. As such, Family Court’s determination denying the mother’s relocation request is not supported by a sound and substantial basis in the record … . Matter of Amber GG. v Eric HH., 2023 NY Slip Op 03059, Third Dept 6-8-23

Practice Point: Mother demonstrated she was the more involved parent and that she and her children would be better off financially and emotionally if she moved near her relatives in Florida. She further demonstrated she is willing to facilitate significant visitation with father. Her petition to relocate should have been granted.

 

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