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PLAINTIFFS HAD STANDING TO CHALLENGE THE TRUST SET UP BY DECEDENT; PLAINITIFFS DID NOT STATE A CAUSE OF ACTION FOR FRAUD BECAUSE IT WAS ALLEGED THE DECEDENT (A THIRD PARTY), NOT THE PLAINTIFFS, RELIED ON THE ALLEGEDLY FALSE STATEMENT; THE COMPLAINT STATED A CAUSE OF ACTION ALLEGING DEFENDANTS EXERCISED UNDUE INFLUENCE OVER THE DECEDENT WHICH AFFECTED THE DECEDENT’S ESTATE-RELATED DECISIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) the complaint did not state a cause of action for fraud because it was alleged a third-party (the decedent), not plaintiffs, relied upon the alleged false statement; (2) the complaint stated a cause of action for “undue influence” on the decedent by the defendants; and (3), […]

THE MODIFICATION OF THE GUARDIANSHIP ORDER MUST BE IN THE BESTS INTEREST OF THE DEVELOPMENTALLY DISABLED PERSON; HERE THE APPOINTMENT OF STEPFATHER AS LIMITED COGUARDIAN CONSTITUTED A CHANGE THAT WAS NOT IN THE DISABLED PERSON’S BEST INTERESTS BECAUSE CONSISTENCY IN ROUTINE AND REGIMEN WAS PARAMOUNT (THIRD DEPT).

The Third Department, modifying Surrogate’s Court, determined the appointment of the stepfather as limited cogurdian of Jonathan JJ, a developmentally disable adult, was not in Jonathan’s best interests. Jonathan had apparently thrived with his father as guardian and his stepfather had not seen Jonathan since 2009: … Surrogate’s Court granted the father’s petition for coguardianship […]

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THE PETITIONER SEEKING TO MODIFY A CUSTODY ARRANGEMENT MUST MAKE A THRESHOLD SHOWING THAT THERE HAS BEEN A CHANGE IN CIRCUMSTANCES SINCE THE LAST CUSTODY ORDER WAS ISSUED; HERE, FATHER’S WANTING MORE PARENTING TIME TO DEVELOP A CLOSER RELATIONSHIP WAS NOT A CHANGED CIRCUMSTANCE (THIRD DEPT).

The Third Department, reversing Family Court, determined father did not meet his burden of showing changed circumstances warranting an increase in parenting time. Father’s simply wanting more parenting time is not a changed circumstance: Family Court found that a change in circumstances existed — namely, that the father wanted to have a closer relationship with […]

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FOR PURPOSES OF A PERMANENT NEGLECT/TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, DIRECT PLACEMENT OF THE CHILD WITH A SUITABLE PERSON MEETS THE DEFINITION OF PLACEMENT IN THE “CARE OF AN AUTHORIZED AGENCY” SUCH THAT A PERMANENT NEGLECT PROCEEDING IS AVAILABLE AFTER DIRECT PLACEMENT FOR ONE YEAR; ALTHOUGH RESPONDENT’S PARENTAL RIGHTS HAD BEEN TERMINATED WHEN THIS APPEAL WAS CONSIDERED, THE “EXCEPTION TO THE MOOTNESS DOCTRINE” WAS INVOKED (THIRD DEPT).

The Third Department, considering the appeal as an exception to the mootness doctrine in this neglect/termination-of-parental rights proceeding, determined that direct placement of the child with a suitable person met the definition of placement in the “care of an authorized agency” for purposes of the pre-requisite for a permanent neglect proceeding seeking to terminate parental […]

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THE ELECTRONICALLY RECORDED HEARING INCLUDED 80 QUESTIONS POSED TO A WITNESS BY COUNSEL BUT ONLY FOUR ANSWERS WERE AUDIBLE; NEW HEARING WITH A STENOGRAPHER ORDERED (THIRD DEPT).

The Third Department determined the record on appeal was insufficient and ordered a new hearing with a stenographer. The hearing was electronically recorded. Counsel ask a witness 80 questions but only four answers were audible. Matter of Jereline Z. v Joseph AA., 2022 NY Slip Op 02848, Third Dept 4-28-22 Practice Point: If a hearing is […]

PETITIONER WAS CHARGED WITH MAKING A COMMENT TO A FELLOW EMPLOYEE AT A SOCIAL GATHERING, WAS FOUND GUILTY AND WAS TERMINATED; THE EMPLOYEE TESTIFIED THE REMARK WAS MADE AT THE WORKPLACE; THEREFORE PETITIONER WAS FOUND GUILTY OF CONDUCT THAT WAS NEVER CHARGED; DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the determination terminating petitioner’s employment with the state, found that petitioner’s due process rights were violated because he was found guilty of conduct that was never charged. Petitioner was charged with making a comment to a fellow employee at a social gathering. But the employee testified the remark was made at […]

WHETHER “CLEANING” IS A COVERED ACTIVITY UNDER LABOR LAW 240(1) DEPENDS ON WHETHER THE CLEANING WORK IS “ROUTINE;” “ROUTINE” CLEANING WORK IS NOT COVERED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determine plaintiff should not have been awarded summary judgment on the Labor Law 240(1) cause of action and defendant’s summary judgment motion should have been granted. The issue was whether plaintiff was injured doing “cleaning” work covered by the Labor Law. The Court of Appeals held plaintiff […]

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THE APPELLATE DIVISION INITIALLY REVERSED SUPREME COURT AND HELD PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; THERE WAS A DEFENSE VERDICT AFTER TRIAL; THE ORDER DENYING SUMMARY JUDGMENT IS NOT APPEALABLE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals: The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant […]

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THE CURRENT GOVERNOR AND LIEUTENANT GOVERNOR, AS WELL AS FORMER GOVERNOR CUOMO, ARE NECESSARY PARTIES IN THIS SUIT PURSUANT TO THE STATE FINANCE LAW CHALLENGING THE CONSTITUTIONALITY OF THE SALARY INCREASES FOR THOSE PARTIES (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the action under the State Finance Law challenging the constitutionality of the salary increases for governor and lieutenant governor should have included the current Governor and Lieutenant Governor, as well as former Governor Cuomo, as necessary parties: CPLR 1001 (a) provides that “[p]ersons . . . who might […]

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; APPELLATE DIVISION REVERSED; EXTENSIVE THREE-JUDGE DISSENTING OPINION (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over a three-judge dissenting opinion, determined plaintiff in this Labor Law 240(1) ladder-fall case should not have been awarded summary judgment. Plaintiff used an A-frame ladder in a closed position because of limited space. While rerouting pipes in the ceiling, plaintiff received an electric shock and fell […]

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