The Second Department determined the mother’s relocation was in the best interests of the child based upon “economic necessity:” “[E]conomic necessity . . . may present a particularly persuasive ground for permitting the proposed move”… .. Here, the mother demonstrated that she was not able to meet her living expenses while residing in Queens, and […]
The Second Department reversed Family Court, which awarded sole physical custody to the mother, and awarded sole physical custody to the father: Here, the Family Court’s award of sole physical custody to the mother lacked a sound and substantial basis in the record. In awarding the mother custody, the Family Court gave undue weight to […]
After affirming a derivative neglect finding against the mother based upon excessive corporal punishment of a sibling, the Second Department determined Family Court should not have denied her visitation: Absent extraordinary circumstances, such as where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges… . Here, […]
The Second Department determined that a certification order which required a note of issue be filed within 70 days, rather than 90 days, could not be the basis for dismissal of the action: The certification order dated March 2, 2010, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the […]
The Second Department determined a note of issue which indicates discovery is not complete is a nullity: Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is […]
The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served. No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit: “Although a defendant’s sworn denial of receipt of service generally rebuts the presumption […]
In affirming the denial of the defendant’s motion to dismiss the complaint based upon a release executed by the plaintiff, the Second Dept explained that motion must be denied because the scope the release could not be definitively determined: “The meaning and scope of a release must be determined within the context of the controversy […]
The First Department determined the SORA court improperly assessed 15 points for violence because there was insufficient evidence of physical injury: The court erred in assessing 15 points under the risk factor for use of violence, because the People did not meet their burden of establishing, by clear and convincing evidence, that defendant caused physical […]
In determining the search of defendant’s backpack was unlawful because there were no exigent circumstances to justify it, the First Department wrote: The search of defendant’s backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control…. The contents of the backpack, […]
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the trial court erred in ruling defense counsel could not argue to the jury that a witness should have been called by the People because defense counsel did not request a missing witness charge (the error was, however, deemed harmless). The complainant’s statement […]
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