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Family Court Improperly Conditioned Future Visitation Upon Enrollment in a Drug Testing Program and Improperly Delegated Its Authority to Control Father’s Visitation to Mother

The Second Department noted that Family Court could not condition father’s future visitation upon enrollment in a drug testing program.  Family Court could only make participating in the drug testing program a component of a current visitation order.  In addition Family Court improperly delegated its control of father’s visitation to mother: …”[A] court may not order […]

Father Estopped from Moving to Vacate Order of Filiation Entered Upon Consent Despite “Somewhat Limited” Parent-Child Relationship

The Second Department determined father was estopped from challenging an order of filiation even though there was evidence the parent-child relationship was “somewhat limited:” Here, the order of filiation was entered approximately 10 years prior to the instant petition, and the father had been paying child support during that time. In addition, the father sought, and was […]

Question of Fact Whether Owner of Servient State Had Duty to Maintain Easement in Safe Condition/Easement Used for Servient-Estate-Owner’s Own Purposes

The Second Department explained when the owner of a servient estate has a duty to maintain an easement in a safe condition: While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures …, such an owner may be required to perform maintenance functions where it […]

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Stray Remarks Doctrine Applied in Action Under New York City Human Rights Law

The First Department determined that the “stray remarks doctrine” applied to actions brought brought under the New York City Human Rights Law.  The court rejected the argument that a statement in an email written weeks after plaintiff’s termination was actionable, asserting the so-called “stray remarks doctrine:” Plaintiff relies on one remark made in an email […]

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Inexperience or Lack of Sophistication Does Not Toll the Statute of Limitations Re: the Discovery of Fraud/The Test for When the Fraud Should Have Been Discovered in an Objective One

The First Department determined the action alleging the fraudulent churning of trades by an employee of Morgan Stanley was untimely.  The plaintiff argued that plaintiff’s inexperience and lack of sophistication should toll the statute of limitations re: the discovery of the fraud.  The court explained that when the fraud should have been noticed is determined by an […]

“In Transit” Means Between Destinations, Even If “At Rest”

The First Department, in a full-fledged opinion by Justice Saxe, determined that the “in transit” clause of a bond covered the loss which occurred when the stolen cash was in a vault owned by the armored car company.  Under New York law, the term “in transit” covers a larceny which occurs when the stolen item is between destinations, even […]

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Language in the Arbitration Agreement Supported the Applicability of the New York Law Reserving the Determination of a Statute of Limitations Defense to the Court, Even Though the Controlling Federal Arbitration Act Presumptively Reserves the Determination of a Statute of Limitations Defense to the Arbitrator

The First Department determined that an arbitration agreement which specifically incorporates “the arbitration laws of New York State” incorporates the New York rule that the resolution of a statute of limitations defense is for the court, not the arbitrator, even where the matter is controlled by the Federal Arbitration Act [FAA] (which presumptively reserves resolution of […]

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Use of Church Property Sufficient to Maintain Tax-Exempt Status

The Third Department determined the City (respondents) did not demonstrate church-owned property was no longer used for religious purposes.  Therefore the City could not revoke the tax-exempt status of the property: Although the burden of proof in tax exemption matters ordinarily lies with the party seeking an exemption, a municipality seeking to withdraw an existing exemption […]

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