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IF PLAINTIFFS IN A FRAUDULENT-CONVEYANCE AND ENFORCEMENT-OF-MONEY JUDGMENT PROCEEDING CAN BE FULLY COMPENSATED BY MONEY DAMAGES, IT IS ERROR TO ISSUE A PRELIMINARY INJUNCTION (FIRST DEPT),

The Frist Department, reversing Supreme Court, determined plaintiffs in this fraudulent conveyance action can be fully compensated by money damages. Therefore the preliminary injunction was not available relief: In this action to set aside alleged fraudulent conveyances and other relief in aid of enforcement of money judgments, plaintiffs can be fully compensated by a monetary […]

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THERE WAS A FIDUCIARY RELATIONSHIP BETWEEN THE PARTIES AS PARTNERS AND CO-OWNERS OF A BUSINESS, GIVING RISE TO AN ABSOLUTE RIGHT TO AN ACCOUNTING, NOTWITHSTANDING THE EXISTENCE OF AN ADEQUATE REMEDY AT LAW (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court determined the petitioners were entitled to an accounting for a business, Ocinomled, Ltd., because there was a fiduciary relationship between the parties as partners and co-owners of Ocinomled: This Court has held “whenever there is a fiduciary relationship between the parties . . . there is an absolute […]

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THE SIX-YEAR DELAY, DURING WHICH DEFENDANT WAS INCARCERATED, DEPRIVED DEFENDANT OF HIS RIGHT TO A SPEEDY TRIAL; THE MURDER AND ASSAULT CONVICTIONS AFTER TRIAL REVERSED (FIRST DEPT).

The First Department, reversing defendant’s murder and assault convictions after trial, determined defendant have been deprived of his right to a speedy. It was presumed that the delay of six years, during which defendant was incarcerated, prejudiced the defense. The prosecution failed to demonstrate good cause for the delay: “Where there has been extended delay, […]

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SUPREME COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT OF DIVORCE AGAINST THE HUSBAND, WHO WAS REPRESENTING HIMSELF, WHEN HE DID NOT APPEAR AT THE INQUEST; BOTH THE COURT AND THE WIFE WERE AWARE THE HUSBAND HAD BEEN DIAGNOSED WITH A SIGNIFICANT MENTAL HEALTH CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judgment of divorce should not have been entered after the husband, who was representing himself, failed to appear at an inquest. Both the court and his wife were aware he had been diagnosed with a mental health condition, resulting in episodes when he could not care for […]

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THE BIOLOGICAL MOTHER AND THE ADOPTIVE MOTHER ENTERED A POSTADOPTION CONTACT AGREEMENT WHICH ALLOWED TWO SUPERVISED VISITS WITH THE BIOLOGICAL MOTHER PER YEAR; THE EVIDENCE OF THE CHILDREN’S BEHAVIOR AFTER VISITING WITH THE BIOLOGICAL MOTHER SUPPORTED FAMILY COURT’S CONCLUSION IT WAS IN THE BEST INTERESTS OF THE CHILDREN TO TERMINATE VISITATION WITH THE BIOLOGICAL MOTHER; THE DISSENT ARGUED THE EVIDENCE OF THE DAUGHTER’S, IN CONTRAST TO THE SON’S, POST-VISIT BEHAVIOR DID NOT SUPPORT TERMINATION OF VISITATION WITH THE DAUGHTER (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined Family Court properly terminated the biological mother’s visitation with her children who had been adopted. The biological mother and the adoptive mother had entered a postadoption contact agreement which allowed the biological mother two supervised visits per year with her son and daughter. The evidence at […]

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THE FACT THAT THE ATTORNEY FOR THE CHILD (AFC) IN THIS CUSTODY MATTER HAD, AS A JUDGE, PRESIDED OVER A DIFFERENT CUSTODY MATTER INVOLVING MOTHER, BUT INVOLVING DIFFERENT CHIDREN AND A DIFFERENT FATHER, DID NOT REQUIRE AUTOMATIC DISQUALIFACTION OF THE AFC PURSUANT TO JUDICIARY LAW 17 (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the attorney for the child (AFC) in the instant custody matter, who, as a judge, had presided over another custody case involving mother and different children, was not subject to automatic disqualification: Various factual circumstances exist where disqualification of an attorney under Judiciary Law § 17 has […]

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IN THIS SEX-OFFENSE CASE, THE SENTENCING JUDGE VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO DISCLOSE THE VICTIM IMPACT STATEMENT TO THE DEFENDANT WITHOUT PLACING THE REASONS FOR NONDISCLOSURE ON THE RECORD; THE ISSUE SURVIVED THE WAIVER OF APPEAL (THIRD DEPT).

The Third Department, vacating defendant’s sentence and remitting for resentencing before a different judge, determined the sentencing judge who reviewed the victim impact statement in this sexual-offense case, and who granted the victim’s request to keep the victim impact statement confidential, violated CPL 390.50, which requires the judge to state the reasons, on the record, […]

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PLAINTIFF SUFFICIENTLY ALLEGED CAUSES OF ACTION FOR EMPLOYMENT DISMCRIMINATION BASED ON NATIONAL ORIGIN (YEMENI), HOSTILE WORK ENVIRONMENT, AND RETALIATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff stated claims for (1) employment discrimination on the basis of national origin )Yemeni), (2) hostile work environment, and (3) retaliation: [Plaintiff’s] assertion that he was denied a promotion to sergeant on at least two occasions adequately supports … his claim [for discrimination on the basis of national […]

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THE INDICTMENT CHARGED DEFENDANT WITH ASSAULT SECOND AND ATTEMPTED ASSAULT SECOND BUT DID NOT ALLEGE THE USE OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; THE PEOPLE’S THEORY AT TRIAL WAS DEFENDANT USED A PVC PIPE AS A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; BUT, TO CORRECT THE FLAWED INDICTMENT, THE JUDGE, A DAY BEFORE THE END OF THE TRIAL, AMENDED THE INDICTMENT TO CHARGE ASSAULT THIRD AND ATTEMPTED ASSUALT THIRD; THE AMENDMENT PREJUDICED THE DEFENDANT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, vacating defendant’s conviction with leave to resubmit, determined the indictment should not have been amended at the end of the trial to charge defendant with assault third and attempted assault third, instead of assault second and attempted assault second as originally charged in the indictment. […]

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A NOTE EXECUTED BY ONE TENANT BY ENTIRETY AND SECURED BY REAL PROPERTY OWNED BY BOTH TENANTS BY THE ENTIRETY, DONE WITHOUT THE OTHER TENANT BY THE ENTIRETY’S CONSENT, DOES NOT ENCUMBER THE OTHER TENANT BY THE ENTIRETY’S INTEREST IN THE REAL PROPERTY (SECOND DEPT).

The Second Department determined the note executed by Gladys Pajuelo and secured by a mortgage on property owned by Gladys and Celso Pajuelo as tenants by the entirety, done without Celso’s consent, did not encumber Celso’s interest in the property. Therefore the bank in this foreclosure action did not have an equitable mortgage on Celso’s […]

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