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Entries by Bruce Freeman

Mental Health Counseling Can Not Be Made a Condition of Visitation and Court Can Not Delegate Authority to Determine When Visitation Should Be Resumed

In upholding Family Court’s denial of visitation to the mother, the Fourth Department noted:  “The court erred, however, in directing the mother to engage in mental health counseling as a condition of visitation and in delegating its authority to the children’s counselor to determine when a resumption of visitation would be appropriate … .”  Matter of […]

Hearsay Evidence in Neglect Proceeding Was Not Admissible—Petition Dismissed

In reversing Family Court and dismissing a neglect petition against the father, the Fourth Department determined the hearsay evidence presented against the father was inadmissible: At the fact-finding hearing…, “only competent, material and relevant evidence may be admitted” (§ 1046 [b] [iii]). Here, “[t]he evidence offered in support of the petition against the father consisted […]

Incarcerated Father Entitled to Reinstatement of His Petition for Visitation

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 […]

Inability of One of Two Children to Get Along with Custodial Parent Was a Sufficient Changed Circumstance to Justify the Award of Custody of that One Child to the Other Parent

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 […]

Family Court Failed to Apply Equitable Distribution to Marital Assets and Failed to Give Wife Credit for Enhanced Earnings Generated by Husband’s Master’s Degree

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 […]

Father’s Consent to Adoption Not Required

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 […]

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Criteria for Negligent Misrepresentation Action

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 […]

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Plaintiff Need Not Exclude Every Other Possible Cause of an Accident to Demonstrate Proximate Cause

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 […]

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Plaintiff Was Unable to Raise a Question of Fact About Whether Her Injuries Were Related to a Preexisting Condition

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 […]

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