In reversing the dismissal of an incarcerated father’s petition for visitation with his nine-year-old child, the Fourth Department wrote: Here, we conclude that “the record is not sufficient to determine whether visitation [with the father] would be detrimental to [the child’s] welfare” … Additionally, neither the mother nor the [attorney for the child] presented any […]
The Fourth Department affirmed Family Court’s ruling that the father had demonstrated a change of circumstances warranting the change of custody for one of two children based upon the mother’s strained relationship with that one child: Here, the parties vary only in their ability “to provide for the child’s emotional and intellectual development” …, and […]
The Fourth Department determined the trial court erred in failing to equitably distribute all or portions of an investment account, a 403-b deferred compensation account and preretirement death benefits. In addition the Fourth Department determined the wife was entitled to a portion of her husband’s enhanced earnings from his master’s degree. The underlying principles and […]
In affirming Family Court’s determination the father’s consent to adoption was not required, the Fourth Department explained the analytical criteria: “[T]here are two steps in determining whether the biological father’s consent may be dispensed with in a proceeding seeking approval of the adoption of his child[ren]” … “Using the guidelines set forth in Domestic Relations […]
In reversing the denial of defendant’s motion to dismiss an action for negligent misrepresentation concerning the underwriting of mortgage loans, the Fourth Department determined plaintiff had not demonstrated the requisite “privity-like” relationship: A cause of action for negligent misrepresentation must allege “ ‘(1) the existence of a special or privity-like relationship imposing a duty on […]
In reversing the grant of summary judgment to the defendant because of an alleged inability of the plaintiff to establish proximate cause, the Fourth Department determined the plaintiff need not exclude every possible cause of the accident other than the defendant’s acts or omissions: In order to establish proximate cause, “[p]laintiffs need not positively exclude […]
Over a dissent, the Fourth Department reversed the motion court’s denial of summary judgment to the defendant in an automobile-accident personal injury action. The Fourth Department determined plaintiff had not raised a question of fact in response to the proof submitted by defendant that her injuries were linked to a preexisting condition, and not the […]
Plaintiff was injured when he slipped from a diving board at defendant’s pool. In finding a question of fact had been raised about whether there existed a concealed or unreasonably increased risk on the surface of the diving board, the Fourth Department explained the applicable law: The doctrine of primary assumption of risk “generally constitutes […]
The Fourth Department reversed the trial court’s denial of a motion to amend a complaint, noting: “Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit… “. … A “court should not examine the merits or legal sufficiency […]
The Fourth Department affirmed the Court of Claims’ determination that a 21/2 inch drop off in the shoulder of a road was not the proximate cause of a driver’s losing control of her vehicle. The doctrine of “qualified immunity” in connection with road defects is explained. Marrow… v State…, CA 12-00974, 241, 4th Dept, 4-26-13 TRAFFIC […]
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