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REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the appellate division, over a two-judge dissenting opinion, determined the trial court properly refused to instruct the jury on the justification defense. The dissent laid out the facts. At the time of the shooting defendant (Sanchez), who had just been beaten up, and defendant’s friends were confronted by several people who apparently had a knife and broken bottles. Although the defendant had retrieved a gun from a car and returned to the confrontation, it was defendant’s friend who took the gun and fired:

Viewing the evidence in the light most favorable to defendant … , the trial court properly declined to charge the jury on the justification defense because, even assuming that the jury could rationally find that defendant subjectively believed he had been threatened with the imminent use of deadly physical force, “the jury could not rationally conclude that his reactions were those of a reasonable [person] acting in self-defense” … . Further, on this record, there was no reasonable view of the evidence that defendant could not safely retreat at the time that deadly physical force was used … .

From the dissent:

Lurking somewhere beneath the majority’s opinion is the thought that you mustn’t bring a gun to a knife fight. We should keep in mind that, although there is no evidence that the group threatening Mr. Sanchez and his friends was armed with guns, courts of this state have held that the threat of deadly force may exist when a group of people attacking an individual is not armed at all … or when, in a one-on-one altercation, an unarmed victim “grabs” at a defendant’s gun … . Courts have also characterized a variety of items as dangerous instruments which, if used as part of a real or threatened attack, might justify the use of deadly force … . People v Sanchez, 2018 NY Slip Op 01957, CtApp 3-22-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/EVIDENCE (CRIMINAL LAW, (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/JUSTIFICATION DEFENSE (CRIMINAL LAW, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))

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CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT).

The Second Department determined the negligent supervision lawsuit against the city by an inmate who was assaulted by another inmate was properly dismissed. The attack was not foreseeable from the standpoint of the correctional facility personnel:

A municipality owes a duty of care to inmates in correctional facilities to safeguard them from attacks from other inmates … . This duty, however, does not place the municipality in the role of insurers of inmate safety … . Rather, “the scope of the [municipality’s] duty to protect inmates is limited to risks of harm that are reasonably foreseeable” … . Foreseeability includes what the defendant municipality knew or should have known … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the assault upon the plaintiff was not reasonably foreseeable. In this regard, the defendants’ submissions demonstrated that the plaintiff’s assailant was not a known gang member, had no prior incidents of fighting or aggressive behavior while at Rikers Island, and was not classified as high risk for fighting. Additionally, their submissions established that the plaintiff did not know or see his assailant, who, without provocation, punched him in the jaw, and that at the time there was a correction officer present providing the proper level of supervision in accordance with the applicable standard of “active supervision” as defined in the State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries … . McAllister v City of New York, 2018 NY Slip Op 01909, Second Dept 3-21-18

NEGLIGENCE (SUPERVISION OF INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/ASSAULT (NEGLIGENCE, INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/INMATES (NEGLIGENCE, SUPERVISION, MUNICIPAL LAW,  CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, INMATES, SUPERVISION, SUPERVISION OF INMATES, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))/THIRD PARTY ASSAULT (INMATE ON INMATE, CITY NOT LIABLE FOR AN INMATE ON INMATE ASSAULT, ATTACK NOT FORESEEABLE (SECOND DEPT))

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PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although defendants made out a prima facie case that they did not create or have notice of the icy condition where plaintiff fell, the plaintiff, with submissions which included certified climatological data and the deposition of the nonparty witness, raised questions of fact about the weather conditions, the presence of ice and defendants’ notice:

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created the alleged ice condition nor had actual or constructive notice of it … . In opposition, however, the plaintiff submitted certified climatological data and the deposition testimony of the nonparty witness Fredy Calle, which raised triable issues of fact as to what the weather conditions were like preceding the accident, whether ice was present on the landing at the time of the accident, how long the ice may have been present, and whether the defendants had notice of the alleged ice condition that proximately caused the plaintiff to fall … . Monje v Guaraca, 2018 NY Slip Op 01911, Second Dept 3-21-18

NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CLIMATOLOGICAL DATA (SLIP AND FALL,  PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the difference in elevation which caused plaintiff to fall was not inherently dangerous and was readily observable:

… [T]he plaintiff, while walking on a walkway after parking his car at a lot located on the Citi Field complex in Queens, allegedly was injured within the defendants’ exterior grounds when he fell due to a difference in elevation between the walkway, which consisted of patio pavers, and an abutting tree bed … . …

… [T]here is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses … . Here, the defendants established, prima facie, that the difference in elevation between the surface of the walkway and the surface of the tree bed was not inherently dangerous and was readily observable by the reasonable use of one’s senses … . Costidis v City of New York, 2018 NY Slip Op 01901, Second Dept 3-21-18

NEGLIGENCE (SLIP AND FALL, HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))/SLIP AND FALL (HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT))

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EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a cell phone tower lease with a municipality did not expire. An extension of the lease was ratified by the municipality when it continued to accept lease payments after the expiration of the first five-year term:

… [I]n seeking a declaration that the lease expired … , the plaintiffs alleged that the Village’s Board of Trustees … only authorized the lease for a term of five years. Indeed, the resolution provided that “the term of the leases [sic] shall not exceed a period of five (5) years from the date upon which it is executed.” The lease, however, provided that the initial term of the lease “will be five (5) years from the Commencement Date'” … , “and shall automatically renew for up to ten (10) additional terms of five (5) years each.

Verizon and AG separately moved for summary judgment, arguing that the lease did not expire … , because the Village ratified the lease by accepting rental payments, issuing building permits, and granting variance applications in connection with the construction of the cell tower. …

“A contract that is not approved by a relevant municipal or governmental body, as required by law, rule, or regulation, may be ratified by the municipality or government body by subsequent conduct, such as by making payments pursuant to the contract” … . Giunta v AG Towers, Inc., 2018 NY Slip Op 01905, Second Dept 3-21-18

MUNICIPAL LAW (EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/CONTRACT LAW (RATIFICATION, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/RATIFICATION (CONTRACT LAW, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/LANDLORD-TENANT (CONTRACT LAW, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))

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INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT).

The Second Department determined the insurer (petitioner) was entitled to a framed issue hearing in this traffic accident case. The appellant was involved in a multi-vehicle accident but claimed he was cut off by a vehicle which left the scene. After a framed issue hearing was held to determine whether a hit-and-run vehicle was involved, appellant appealed arguing the insurer was not entitled to a framed issue hearing:

According to the appellant … , another vehicle, which he described as a “pick-up truck with a landscaping trailer attached,” initially struck his vehicle and then left the scene. Under a policy of insurance issued by the petitioner, the appellant demanded arbitration of his claim for uninsured motorist benefits for the injuries he allegedly sustained in the accident. The petitioner thereafter commenced this proceeding, inter alia, to permanently stay arbitration of the appellant’s claim. …

” The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay'” …  “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … . “Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle” … . ” The insured has the burden of establishing that the loss sustained was caused by an uninsured vehicle, namely, that physical contact occurred, that the identity of the owner and operator of the offending vehicle could not be ascertained, and that the insured’s efforts to ascertain such identity were reasonable'”… .

Here, the petitioner, by submitting the police accident report containing the appellant’s statement that his vehicle was cut off by an unknown vehicle with a red trailer, raised a triable issue of fact as to whether physical contact occurred between the appellant’s vehicle and the alleged unidentified hit-and-run vehicle … . Contrary to the appellant’s contention, the Supreme Court properly directed a framed-issue hearing to determine whether a hit-and-run vehicle was involved in the accident  … . Matter of Allstate Ins. Co. v Deleon, 2018 NY Slip Op 01915, Second Dept 3-21-18

INSURANCE LAW (TRAFFIC ACCIDENTS, FRAMED ISSUE HEARING, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, FRAMED ISSUE HEARING, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/FRAMED ISSUE HEARING (INSURANCE LAW, TRAFFIC ACCIDENTS, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/ARBITRATION, STAY OF (INSURANCE LAW, TRAFFIC ACCIDENTS, FRAMED ISSUE HEARING, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/HIT-AND-RUN (INSURANCE LAW, TRAFFIC ACCIDENTS, FRAMED ISSUE HEARING,  INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Nimkoff) was entitled to a hearing on whether plaintiff bank (Hudson City Savings Bank) made a good faith effort to resolve the foreclosure action pursuant to CPLR 3408 (f):

… Nimkoff submitted … his own affidavit in which he averred that the plaintiff refused to negotiate with him for the stated reason that another entity, Hudson City Savings Bank (hereinafter Hudson City), was the holder of the mortgage and did not allow loan modifications. In opposition, the plaintiff contended that its counsel properly appeared at the two foreclosure settlement conferences and advised the court that Hudson City does not participate in the home affordable modification program. The plaintiff submitted … the master mortgage loan purchase and servicing agreement (hereinafter PSA) between the plaintiff and Hudson City to establish that the plaintiff was the servicer of the subject mortgage and Hudson City was the purchaser. However, the PSA also authorized the plaintiff to modify the terms of the subject mortgage loan with Hudson City’s consent. In any event, the statute requires the parties to negotiate in good faith to reach a mutually agreeable resolution. There is no evidence in the record that the plaintiff attempted to gain Hudson City’s consent to offer a loan modification or offered Nimkoff another nonretention solution, such as a deed in lieu of foreclosure. In fact, there is no evidence in the record that any effort was made to reach a resolution at the two foreclosure settlement conferences. Citimortgage, Inc. v Nimkoff, 2018 NY Slip Op 01900, Second Dept 3-21-18

FORECLOSURE (SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/SETTLEMENT CONFERENCE (FORECLOSURE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CPLR 3408 (f) (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))

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ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (Jackson’s) motion to toll the accrual of interest during the four years between the filing of the first foreclosure action, which was erroneously dismissed, and the second foreclosure action should have been granted. The court further found that defendant’s motion to amend the answer to assert the lack of standing defense should have been granted:

Although the initial October 2010 RJI may have been rejected erroneously, the plaintiff fails to explain the ensuing four-year delay between the initial October 2010 filing and the subsequent filing on November 6, 2014. Under the unusual circumstances of this case, since Jackson was prejudiced by this unexplained delay, during which time interest had been accruing, the interest on the loan should have been tolled from December 22, 2010 (that is, 60 days after the alleged initial October 2010 RJI was filed, the time period during which a settlement conference would be scheduled), through the date that the plaintiff filed the subsequent RJI on November 6, 2014 … . …

“Leave to amend a pleading shall be freely given,’ provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit” … . “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” … . Here, Jackson sought to amend his answer after he was served with the November 2014 RJI to which the plaintiff had attached a copy of the subject note, executed by him in favor of Countrywide Bank, FSB, and which had not been endorsed to the plaintiff. Since Jackson’s proposed amendment to include the defense of lack of standing did not result in any prejudice to the plaintiff and was not palpably insufficient or patently devoid of merit, the Supreme Court improvidently exercised its discretion in denying that branch of Jackson’s motion which was for leave to amend his answer to assert the defense of lack of standing … . BAC Home Loans Servicing, L.P. v Jackson, 2018 NY Slip Op 01896, Second Dept 3-21-18

FORECLOSURE (ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/INTEREST (FORECLOSURE,  ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/CIVIL PROCEDURE (AMEND ANSWER, FORECLOSURE, ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))

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GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT).

The Second Department determined the paternal grandparents had automatic standing to seek visitation upon father’s death. The court further determined visitation was in the best interests of the children, despite the animosity of mother (not caused by the grandparents):

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry … . First, it must find that the grandparent has standing, based on the death of a parent or equitable circumstances … . “Where either parent of the grandchild has died, the grandparents have an absolute right to standing” … . Once the court concludes that the grandparent has established standing to petition for visitation, the court must then determine if visitation is in the best interests of the child … . …

Animosity alone is insufficient to deny visitation … .Here, the estrangement between the paternal grandparents and the children resulted from the animosity between the mother and the paternal grandparents, and the record supported the forensic evaluator’s determination that the paternal grandparents’ conduct was not the cause of the animosity … . Matter of Mastronardi v Milano-Granito, 2018 NY Slip Op 01923, Second Dept 3-21-18

FAMILY LAW (GRANDPARENTS, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/DOMESTIC RELATIONS LAW (VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/STANDING (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))

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SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement met the statutory requirement of the adoption statute. The petitioner therefore had standing to adopt without her spouse and her petition should not have been dismissed:

Domestic Relations Law § 110 dictates who has standing to adopt, and should be strictly construed in harmony with the legislative purpose that adoption is a means of securing the best possible home for a child … . As relevant here, an “adult married person who is living separate and apart from his or her spouse . . . pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded . . . may adopt another person” without his or her spouse … .

A separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance … . However, “[t]he agreement is simply intended as evidence of the authenticity and reality of the separation'” … . Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement “generally . . . may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” in providing grounds for a conversion divorce under Domestic Relations Law § 170(6) … .

Here, the separation agreement evidences the parties’ agreement to live separate and apart. The agreement is in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded … . Therefore, it satisfies the statutory requirement of the adoption statute with respect to a separation agreement … . Matter of Jason (Sonia O.), 2018 NY Slip Op 01922, Second Dept 3-21-18

FAMILY LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/ADOPTION (SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/SEPARATION AGREEMENT (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/DOMESTIC RELATIONS LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))

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