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THE NINE YEARS OF PENSION CREDITS THE HUSBAND EARNED BEFORE THE MARRIAGE ARE HIS SEPARATE PROPERTY; HOWEVER THE MARITAL FUNDS USED TO PURCHASE THOSE CREDITS DURING THE MARRIAGE ARE SUBJECT TO EQUITABLE DISTRIBUTION (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this divorce proceeding, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the pension credits earned by the husband during the nine years prior to the marriage were his separate property. But the marital funds used to purchase those credits during the marriage were subject to equitable distribution: […]

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FAMILY COURT’S BEST INTERESTS RULING IN THIS MODIFICATION OF CUSTODY PROCEEDING DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD; THE APPELLATE DIVISION AWARDED PRIMARY PHYSICAL CUSTODY TO MOTHER (THIRD DEPT). ​

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody should have been granted: Having concluded that Family Court’s determination lacks a sound and substantial basis in the record, we are empowered to make our own independent determination of the child’s best interests, and our authority in that regard is as […]

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PURSUANT TO LABOR LAW SECTION 511, THE NEW YORK CITY SUPPER CLUB WAS NOT THE EMPLOYER OF THE MUSICIANS, DANCERS AND OTHER PERFORMERS WHO ENTERTAINED AT THE CLUB; THEREFORE THE CLUB WAS NOT OBLIGATED TO MAKE UNEMPLOYMENT INSURANCE CONTRIBUTIONS ON BEHALF OF THE PERFORMERS (THIRD DEPT).

​The Third Department, reversing the Unemployment Insurance Appeal Board, determined that the musicians, dancers and other artists who performed at a New York City supper club (Griffs) were not employees of the club under Labor Law 511. Therefore the club was not obligated to make additional unemployment insurance contributions with respect to those performers: Pursuant […]

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PLAINTIFF BANK’S 2017 DE-ACCELERATION LETTER IN THIS FORECLOSURE ACTION WAS NOT AMBIGUOUS AND THEREFORE SERVED TO STOP THE RUNNING OF THE STATUTE OF LIMITATIONS TRIGGERED BY THE INITIAL FORECLOSURE ACTION IN 2012; THEREFORE THE SECOND FORECLOSURE ACTION BROUGHT IN 2018 WAS TIMELY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Fisher, determined plaintiff bank’s 2017 de-acceleration letter was not ambiguous and served to stop the running of the statute of limitations triggered when the mortgage loan was accelerated by initial the 2012 foreclosure action: … [P]laintiff submitted … a copy of the September […]

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IN THIS MODIFICATION OF CUSTODY PROCEEDING, MOTHER’S PROOF OF THE CHILD’S INJURIES IN FATHER’S CARE AND HER IMPROVED PARENTING SKILLS AND LIVING CONDITIONS WAS SUFFICIENT TO WITHSTAND FATHER’S MOTION TO DISMISS; THE JUDGE APPEARS TO HAVE PREJUDGED THE CASE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case to a different judge, determined mother’s petition for a modification of custody should not have been dismissed: “A parent seeking to modify an existing custody order must first show that a change in circumstances has occurred since the entry of the existing custody order that […]

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THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER VIOLATED THE RECKLESS-DISREGARD-FOR-THE-SAFETY-OF-OTHERS STANDARD OF CARE FOR POLICE VEHICLES IN PURSUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant police officer, Benbow, violated the reckless disregard standard of care in this traffic accident case. Plaintiff was the driver’s partner in the police car which collided with another car in an intersection when the driver was pursuing a car with […]

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THE CAUSES OF ACTION FOR INDEMNITY AND CONTRIBUTION IN THIS SLIP AND FALL CASE DO NOT ACCRUE UNTIL THE UNDERLYING CLAIM IS PAID, WHICH HAS NOT HAPPENED YET; THEREFORE THE STATUTE OF LIMITATIONS ON THOSE CAUSES OF ACTION HAS NOT YET STARTED TO RUN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the indemnity and contribution causes of action in the slip and fall case should not have been dismissed as time-barred. The statute of limitations starts to run on these causes action when the underlying claim has been paid, which had not yet occurred: “The statute of limitations on […]

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION DID NOT IDENTIFY THE RECORDS RELIED UPON FOR THE CALCULATIONS AND DID NOT ATTACH THE RELEVANT BUSINESS RECORDS; IN ADDITION THE HEARING ON NOTICE REQUIRED BY CPLR 4313 WAS NOT HELD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action was deficient because the business records used for the calculations were not identified or attached. In addition, the referee did not hold the evidentiary hearing required by CPLR 4313: “The report of a referee should be confirmed whenever the findings are […]

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REDUCTION OF PETITIONER-SCHOOL-DISTRICT EMPLOYEE’S RETIREMENT HEALTH BENEFITS BELOW THE LEVEL AFFORDED ACTIVE EMPLOYEES VIOLATES INSURANCE LAW 4235 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the school district’s reduction of petitioner-employee’s (Perrotta’s) retirement health benefits below the level afforded active employees violated the Insurance Law: The moratorium law [Insurance Law 4235] sets “‘a minimum baseline or “floor” for retiree health benefits’” which is “‘measured by the health insurance benefits received by active employees […]

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​ THE DISCHARGED LAW FIRM HANDLED THE PERSONAL INJURY CASE FOR TWO YEARS; ALTHOUGH THE FIRM DID NOT SUBMIT ANY TIME RECORDS, SUPREME COURT ABUSED ITS DISCRETION IN REFUSING TO AWARD THE DISCHARGED FIRM A PORTION OF THE CONTINGENCY FEE AFTER THE CASE SETTLED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court abused its discretion in refusing to award attorney’s fees to a law firm (Gross) which represented the plaintiff in a personal injury case for two years before being discharged. The case ultimately settled: After being retained, Gross filed a no-fault benefits application, referred the plaintiff to […]

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