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BUYER WAS ENTITLED TO SPECIFIC PERFORMANCE OF A CONTRACT FOR THE SALE OF “INCLUSIONARY AIR RIGHTS” (IAR’S); IAR’S DICTATE THE ALLOWED SQUARE FOOTAGE OF BUILDINGS ON A PARCEL OF LAND (THE ALLOWED NUMBER OF FLOORS FOR EXAMPLE) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gonzalez, determined that a contract for the purchase of “inclusionary air rights” (IAR’s) was subject to specific performance. “Air rights” are controlled by zoning regulations. For example, if a 10,000 square-foot parcel of land is allowed 50,000 square feet of floor space, the air rights for that 10,000 square-foot parcel constitute 40,000 square feet. Here the contract for the purchase of air rights between sophisticated real estate developers was deemed to be subject to specific performance. Defendant seller tried to back out of the deal because the selling price was too low:

… New York courts have consistently considered air rights an “interest in real property” … . … [S]pecific performance is not solely limited to real property; the remedy may also apply in other instances, such as a conveyance of shares of stock in a close corporation or an agreement to sell shares in a cooperative real estate corporation … .

… [S]pecific performance may be available in actions where the market is opaque and the price of the goods is subject to intense fluctuation … . … [S]pecific performance is warranted because of the parties’ incorporation of a specific performance in their agreement, defendant’s willful breach of the agreement, the absence of an inequitable or disproportionate burden, and the admitted uncertainty of valuing IARs.  301 E. 60th St. LLC v Competitive Solutions LLC, 2023 NY Slip Op 02842, First Dept 5-30-23

Practice Point: A contract for the sale of “inclusionary air right” (IAR’s) which, for example, dictate the number of floors allowed in a building constructed on a parcel of land, can be subject to specific performance.

 

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THE “NO ACTION” PROVISION IN THE CONTRACT PRECLUDED PLAINTIFFS FROM BRINGING A JUDICIAL BREACH OF CONTRACT ACTION; THE AVAILABLE CONTRACTUAL REMEDIES WERE DEEMED EXCLUSIVE (FIRST DEPT). ​

The First Department, reversing the appellate division, in a full-fledged opinion by Justice Oing, over a two-justice dissent, determined the complaint seeking a judicial determination whether the contingent resource payment (CRP) agreement was breached when Exxon purchased InterOil Corporation was properly dismissed. Exxon successfully argued that plaintiffs’ only recourse was contractual under the terms of the CRP. The opinion is far too detailed to fairly summarize here:

[The CRP] § 8.05’s penultimate sentence not only provides that plaintiffs cannot bring a class action to challenge any aspect of the CRP agreement, but it also bars them from bringing any action or proceeding altogether, “[n]otwithstanding anything to the contrary in this Agreement . . . no individual Holder or other group of Holders will be entitled to exercise such rights.” Such “rights,” written in the plural as opposed to in the singular, refer to those set out in the beginning of the sentence — namely, “institut[ing] any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Agreement.” Mulacek v ExxonMobil Corp., 2023 NY Slip Op 02829, First De[t 5-25-23

Practice Point: Here a provision in the contract providing that no court action for breach of contract could be brought, a so-called “no action” clause, precluded plaintiffs’ lawsuit.

 

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WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT).

The First Department, reversing defendant’s convictions and ordering a new trial, determined the judge did not follow proper procedure re: notes received from the jury during deliberations:

The court did not follow the procedures set forth in People v O’Rama (78 NY2d 270[1991]) with regard to several jury notes. The record does not reflect that the court read or showed four of the jury’s notes to the parties or afforded them an opportunity to provide input regarding the proper response to the notes. Indeed, the record contains no indication that these four notes, each of which sought trial exhibits, were responded to at all. While “[n]otes that only require the ministerial act of sending exhibits into the jury room do not implicate the requirements of O’Rama” and CPL 310.30 … , notes that do not unambiguously describe the requested exhibits warrant input from counsel and are subject to O’Rama’s requirement of meaningful notice. Here, at least two of the notes that the court did not address fall into this latter category. Because of this mode of proceedings error, a new trial is called for. People v Baptiste, 2023 NY Slip Op 02835, First Dept 5-25-23

Practice Point: Although the judge need not share with the parties a note from the jury which requires only a ministerial act, the judge must share a note which is ambiguous about which exhibits are requested. The failure to share the note requires reversal and a new trial.

 

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THE PROOF FATHER NEGLECTED THE CHILD WAS PRIMARILY BASED UPON HIS INCARCERATION, WHICH WAS NOT SUFFICIENT (THIRD DEPT).

The Third Department, reversing Family Court, over a concurrence, determined the proof respondent father neglected the child was insufficient. The neglect finding appeared to be primarily based upon father’s incarceration:

We note that a determination of whether respondent neglected the child was complicated by the fact that no DNA analysis was performed to establish paternity until late 2020, over a year after the child’s birth. * * *

At the fact-finding hearing, … most of the proof upon which petitioner relied was … hearsay. Although no objections were raised, the caseworker testified to the mother’s statements regarding paternity and to respondent’s mother’s statements. In the end, petitioner’s proof failed to establish how respondent’s plan to have his mother care for the child fell below the “minimum degree of care” or how it impaired the child or placed him in imminent danger of becoming impaired … . Petitioner’s proof seemed to be predicated solely on respondent’s incarceration, which cannot alone form the basis for a neglect finding … . Due to the accumulation of errors by petitioner, and the insufficiency of its proof, we find that petitioner failed to establish that respondent neglected the subject child … . Matter of Elijah AA. (Alexander AA.), 2023 NY Slip Op 02812, Third Dept 5-25-23

Practice Point: Here the proof father neglected the child was insufficient. Despite father’s request, a paternity test was not performed for more than a year after the child’s birth. Once father was incarcerated two months before the child’s birth, his mother refused to help out with care for the child, but father was not so informed. Neglect cannot be based solely on father’s incarceration.

 

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THE PROOF OF DOMESTIC VIOLENCE AT THE FORTHCOMING CUSTODY TRIAL SHOULD NOT HAVE BEEN LIMITED TO INCIDENTS OCCURRING AFTER THE HAGUE CONVENTION PROCEEDINGS IN CYPRUS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, determined the proof of domestic violence at the upcoming custody trial should not have been limited to incidents occurring after the Hague Convention proceedings in Cyprus:

… [T]hat aspect of the order that limits the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since conclusion of the Hague Convention proceedings, is vacated. The court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” … . However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. Gould v Kontogiorge, 2023 NY Slip Op 02824, First Dept 5-25-23

Practice Point: Here Family Court should not have limited proof of domestic violence at the upcoming custody trial to incidents occurring after the Hague Convention proceedings in Cyprus. A Hague Convention is not a determination on the merits of any custody issue.

 

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IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated when the alleged sexual assault occurred in this Child Victims Act action:

“Court of Claims Act § 11(b) requires a claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . A failure to comply with the requirements set forth in section 11(b) is a jurisdictional defect that requires dismissal of the claim … . “[A] sufficiently detailed description of the particulars of the claim” is necessary because “[t]he purpose of the section 11(b) pleading requirements is . . . to enable the State to investigate and promptly ascertain the existence and extent of its liability” … . “Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” … . However, “‘[a]bsolute exactness is not required,'” so long as the particulars of the claim are detailed in a manner sufficient to permit investigation … . * * * The Court of Claims erred in directing dismissal of so much of the claim as relates to the alleged sexual assault perpetrated by Hector. The claimant alleged, inter alia, that she was admitted to RPC in 1969 when she was 10 years old, and that Hector assaulted her in the auditorium in the first year of her admission. Contrary to the State’s argument, the claimant was not required to allege the exact dates on which the sexual abuse occurred …”. Wimbush-Burkett v State of New York, 2023 NY Slip Op 02804, Second Dept 5-24-23

Practice Point: Here in this Child Victims Act action, the claim sufficiently alleged the time of the sexual assault. The criteria for a sufficient claim under Court of Claims Act section 11(b) are laid out.

 

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EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT).

The Second Department, reversing Supreme Court in this SORA risk assessment proceeding, determined defendant was not given the required 10-day notice that the People would seek points under a risk factor that differed from the recommendation submitted by the the board. Here the board recommended a 30-point assessment under risk factor 1 for “armed with a dangerous instrument” but the court assessed 15 points for “inflicted personal injury.” The defendant was entitled to notice of that change, even though the number of points was reduced:

Correction Law § 168-n(3) provides that, “[i]f the district attorney seeks a determination that differs from the recommendation submitted by the board, at least ten days prior to the determination proceeding the district attorney shall provide to the court and the sex offender a statement setting forth the determinations sought by the district attorney together with the reasons for seeking such determinations” … , this Court held that the phrase “recommendation submitted by the board” is not limited to just the total points assessed or the recommended sex offender level designation, but “includes the factual predicate for the recommendation” … .

Here, the factual predicate for the Board’s recommendation for the assessment of points under risk factor 1 was the defendant having been “armed with a dangerous instrument,” not that he “inflicted physical injury.” In order to assess points under risk factor 1 based upon infliction of physical injury, the People were required by Correction Law § 168-n(3) to give the defendant the requisite 10-day notice, which they failed to do … . People v Green, 2023 NY Slip Op 02799, Second Dept 5-24-23

Practice Point: If the People seek a SORA risk assessment on a factual basis different from that recommended by the board, defendant is entitled to 10 days notice of the change, even if the change reduces the number of points to be assessed.

 

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FAMILY COURT PROPERLY DETERMINED NEW YORK WAS NOT THE APPROPRIATE FORUM IN THIS CUSTODY DISPUTE, BUT THE NEW YORK PROCEEDINGS SHOULD HAVE BEEN STAYED, NOT DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined Family Court properly decided New York was not the appropriate forum for this custody dispute between father in New York and mother and child in Texas, but Family Court should have stayed, not dismissed, the New York proceedings:

Based on the record before us, we agree with the Family Court that Texas is the more appropriate and convenient forum. The child has not resided in New York since May of 2020. The child also has had no significant connection to New York since 2020, and the substantial, relevant evidence pertaining to the child’s care, protection, education, and personal relationships is in Texas, not New York. Accordingly, the statutory factors weigh in favor of the court’s determination to decline to exercise jurisdiction.

However, Domestic Relations Law § 76-f(3) specifies that “[i]f a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.” Accordingly, the Family Court erred in granting that branch of the motion which was to dismiss the petition … . Matter of Waters v Yacopino, 2023 NY Slip Op 02792, Second Dept 5-24-23

Practice Point: Here Family Court properly found that New York was not the appropriate forum for the custody dispute. But the proper procedure is to stay the New York proceedings, not dismiss them.

 

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MOTHER’S PETITION ALLEGED FACTS SUFFICIENT TO WARRANT A MODIFICATION-OF-CUSTODY HEARING; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition alleged facts sufficient to warrant a hearing on whether the custody arrangement should be modified:

… [M]other’s petition contained allegations that were sufficiently specific to warrant a hearing, including the allegations that the parties’ ability to cooperate with each other with respect to the children had deteriorated and that the parties were no longer capable of communicating with each other in a civil and cooperative manner … .. Those allegations were not before the Family Court on a prior occasion, and were not merely conclusory or nonspecific allegations … . Because facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required  … . Matter of Liang v O’Brien, 2023 NY Slip Op 02789, Second Dept 5-24-23

Practice Point: Here mother’s petition alleged facts sufficient to warrant a modification-of-custody hearing. Although the facts are not described, the legal criteria are laid out in detail.

 

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THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER, DUE TO UNTREATED MENTAL ILLNESS, NEGLECTED ONE CHILD AND DERIVATIVELY NEGLECTED THE OTHER CHILDREN; THE CRITERIA FOR A NEGLECT FINDING IN THIS CONTEXT ARE LAID OUT IN DETAIL (SECOND DEPT).

The Second Department, reversing Family Court, determined the finding that father, due to untreated mental illness, neglected one child, Fyre, and derivatively neglected the other children was not supported by the record:

… [T]he record fails to support a finding of derivative neglect as to the subject children based on the purported neglect of Fyre. In that regard, the petitioner failed to establish that the father suffered from an untreated mental illness that placed Fyre at imminent risk of harm … . Inasmuch as the evidence failed to support a finding that Fyre was endangered by the father’s untreated mental illness, it failed to support a finding of derivative neglect as to the subject children (see Family Ct Act § 1046[a][i] …). Matter of Sonja R. (Victor R.), 2023 NY Slip Op 02787, Second Dept 5-24-23

Practice Point: Here the record did not support the finding that father, based upon his allegedly untreated mental illness, neglected one child and derivatively neglected the other children. Although the facts are not described, the legal criteria for neglect in this context are explained in detail.

 

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