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CITY EMPLOYEE’S CONTRACTUAL RIGHT TO MEDICAL BENEFITS VESTED BEFORE THE COLLECTIVE BARGAINING AGREEMENT WAS TERMINATED (FOURTH DEPT).

The Fourth Department determined that plaintiff city employee’s medical benefits vested before the collective bargaining agreement (CBA) was terminated: “As a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement . . . However, [r]ights which accrued or vested under the agreement will, as a general rule, […]

INCARCERATION AFTER A PROBATION VIOLATION IN THIS VEHICULAR MANSLAUGHTER CASE DEEMED HARSH AND SEVERE, PROBATION REINSTATED WITH 100 HOURS COMMUNITY SERVICE (FOURTH DEPT).

The Fourth Department exercised its discretion to find a legal sentence was unduly harsh and severe. Defendant had been sentenced to incarceration after a probation violation in this vehicular manslaughter case. The Fourth Department reinstated probation with 100 hours of community service: We agree with defendant … that the sentence is unduly harsh and severe. […]

FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO ORDER VISITATION TO THE THERAPISTS BY CONDITIONING FATHER’S VISITATION ON HIS PARTICIPATION IN THERAPEUTIC COUNSELING (FOURTH DEPT).

The Fourth Department determined Family Court should not have conditioned father’s visitation upon his participation in therapeutic counseling because the condition effectively delegated the court’s power to order visitation to the therapists: … [T]he court erred in conditioning the father’s visitation upon his participation in therapeutic counseling. “Although a court may include a directive to […]

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HEARING IS REQUIRED TO DETERMINE WHETHER A GUARDIAN SHOULD BE APPOINTED FOR MOTHER IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, MOTHER SUFFERS FROM SCHIZOPHRENIA (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined a guardian should have been appointed for mother in the proceeding which terminated her parental rights: It is well settled that courts cannot “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty on […]

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IN THIS CUSTODY PROCEEDING BROUGHT BY MOTHER, A HEARING IS NECESSARY TO DETERMINE WHETHER NEW YORK HAD JURISDICTION AFTER THE CHILD SPENT FOUR OR FIVE MONTHS WITH FATHER IN NORTH CAROLINA (FOURTH DEPT).

The Fourth Department, reversing Family Court, found that a hearing is necessary in this custody proceeding to determine whether New York had jurisdiction after the child spent four or five months in North Carolina: Petitioner mother appeals from an order that dismissed for lack of jurisdiction her petition for custody of the subject child. Domestic […]

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DEFENDANT’S ALLEGATION THAT SHE DOES NOT LIVE AT THE ADDRESS WHERE HER BROTHER WAS SERVED IN THIS FORECLOSURE ACTION NECESSITATED A TRAVERSE HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, found that a traverse hearing should have been held to determine whether defendant was properly served with the summons, complaint and Real Property Actions and Proceedings Law (RPAPL) 1303 notice: In this foreclosure matter commenced in 2009, plaintiff’s affidavit of service indicated that service of the summons, complaint and RPAPL […]

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IN THIS CPLR ARTICLE 4 PROCEEDING BROUGHT BY THE ATTORNEY GENERAL, THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE RESPONDENT NOT-FOR-PROFIT CORPORATION VIOLATED ITS FIDUCIARY DUTY AND THE NOT-FOR-PROFIT-CORPORATION LAW WITH RESPECT TO ITS AFFILIATE NOT-FOR-PROFIT CORPORATIONS AND WHETHER THE BUSINESS JUDGMENT RULE APPLIED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decision too fact-specific to be fairly summarized here, determined issues of fact were presented about whether certain actions taken by respondent not-for-profit corporation (TLCN) breached its fiduciary duty to its not-for-profit corporation affiliate (Coburn) and violated the Not-for-Profit Corporation Law. The action was brought by the […]

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FAMILY COURT, IN THE WIFE’S ABSENCE, SUA SPONTE, RAISED ALLEGATIONS NOT INCLUDED IN THE FAMILY OFFENSE PETITION BEFORE THE COURT, FAMILY COURT THEN ALLOWED THE ALLEGATIONS TO BE ADDED TO THE PETITION, AND THE COURT WENT ON TO FIND THAT THE WIFE HAD COMMITTED THE FAMILY OFFENSES OF HARASSMENT AND MENACING, BECAUSE THE WIFE WAS NOT GIVEN NOTICE OF THE ADDED ALLEGATIONS, REVERSAL WAS REQUIRED (THIRD DEPT).

The Third Department, reversing Family Court, determined the wife was not given notice of the allegations which led to the court’s finding she had committed the family offenses of harassment and menacing .  The wife did not appear in court and her attorney told the court she was not authorized to represent her in the […]

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PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE SNOW AND ICE CONDITION IN THIS SLIP AND FALL CASE, AND THE SNOW REMOVAL CONTRACTOR DID NOT OFFER ANY EVIDENCE OF THE STATE OF THE AREA WHERE PLAINTIFF FELL, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the property owner’s (PA’s) and snow removal contractor’s (Cristi’s) motions for summary judgment in this parking lot snow and ice slip and fall case. PA did not demonstrate a lack of constructive knowledge of the condition and Cristi offered no evidence of the actual state of […]

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