You are here: / Civil Procedure
,

Prior Ties to New York Sufficient to Justify Jurisdiction of New York Courts over Custody Proceedings Brought by the Child’s Grandmother Two Months After the Child and Mother Moved to Florida

The Second Department determined New York did not have jurisdiction over the custody matter by virtue of Domestic Relations Law 76 (1)(a) but did have jurisdiction pursuant to Domestic Relations Law 76 (1)(b) ( Unified Child Custody Jurisdiction and Enforcement Act [UCCJEA]).  Respondent mother had moved from New York to Florida with the child two months before the custody proceedings were commenced by petitioner, the child's grandmother (who lives in New York).  The mother argued the New York courts did not have jurisdiction:

UCCJEA provides the jurisdictional grounds for a court of this state to hear an initial custody dispute, including when “this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76 [1] [a]…).

It is not disputed that New York was the home state of the child within six months prior to the time that petitioner commenced this proceeding. Because the child moved to Florida approximately two months prior to the commencement of the proceeding, the question presented is whether Family Court properly concluded that petitioner was a “person acting as a parent” for the purposes of the UCCJEA. A “person acting as a parent” is one who “(a) has physical custody of the child or has had physical custody for a period of six consecutive months . . . within one year immediately before the commencement of a child custody proceeding; and (b) has been awarded legal custody by a court or claims a right to legal custody under the law of this state” (Domestic Relations Law § 75-a [13]). …[B]ecause petitioner neither claims a right to legal custody nor has been awarded legal custody of the child, Family Court erred when it determined that petitioner was a “person acting as a parent” pursuant to Domestic Relations Law § 76 (1) (a).

…Having found that petitioner was not a “person acting as a parent,” it follows that, at the time this proceeding was commenced, the child, who had been living in Florida for fewer than six months, did not have a home state for purposes of the UCCJEA … . In such a case, a New York court may exercise jurisdiction if “(i) the child [and the parent] . . . have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships” (Domestic Relations Law § 76 [1] [b]).

* * * … [W]e find that the record supports a finding that, at the time that the petition was filed, the child and respondent had a significant connection with New York and that “substantial evidence regarding her present and future welfare” existed in New York … . Accordingly, we find that Family Court had subject matter jurisdiction to entertain the petition. Matter of Breselor v Arciniega, 2014 NY Slip Op 09084, 3rd Dept 12-31-14


,

Neither CPLR 5015 Nor Family Court Act 451 Was a Bar to Mother’s Petition to Modify a Child-Support Money Judgment by Temporarily Suspending Interest

In reversing Family Court's denial of mother's petition to modify a child-support money judgment (temporary suspension of interest), the Second Department explained that neither CPLR 5015, nor Family Court Act 451 was a bar to the petition:

The mother's failure to allege any of the grounds listed in CPLR 5015 did not preclude her from seeking modification of the money judgment since the grounds set forth in the statute are not exhaustive … . Additionally, Family Court Act § 451 provides the Family Court with continuing jurisdiction over any support proceeding brought under Family Court Act article 4 “until its judgment is completely satisfied,” and authorizes it to “modify, set aside or vacate any order issued in the course of the proceeding” without limitation as to grounds (Family Ct Act § 451[1]). * * *

Contrary to the Family Court's conclusion, the prohibition contained in Family Court Act § 451 on modifying or vacating an order or judgment so as to “reduce or annul child support arrears accrued prior to the [filing of the petition for modification]” did not preclude the modification the mother sought through her motion, inasmuch as she proposed only to suspend interest on the money judgment prospectively from the date her modification petition was filed (Family Ct Act § 451[1]). Moreover, DSS, the party in whose favor the money judgment was entered, expressly consented to the suspension of interest on the money judgment as requested by the mother.  Matter of Nassau County Dept of Social Servs v Schapp, 2014 NY Slip Op 09139, 2nd Dept 12-31-14


Recommencement of A Dismissed Action Pursuant to CPLR 205 (a) Not Allowed Where Prior Action Was Dismissed for Neglect to Prosecute

The Second Department determined that dismissal of plaintiff's action for neglect to prosecute precluded the commencement of another identical action pursuant to CPLR 205 (a):

The Supreme Court correctly concluded that a prior action commenced by the plaintiff against the defendant, which asserted the same causes of action, was dismissed for the plaintiff's failure to obtain personal jurisdiction over the defendant and neglect to prosecute, and that the order of dismissal entered in that action adequately set forth the conduct of the plaintiff that constituted the neglect and demonstrated a general pattern of delay in proceeding (see CPLR 205[a]). Accordingly, the court properly concluded that the plaintiff could not avail herself of CPLR 205(a), which provides that, under certain circumstances, an action that has been dismissed, albeit not on the merits, may be recommenced within six months after its dismissal… . Webb v Greater NY Auto Dealers Assn Inc, 2014 NY Slip Op 09121, 2nd Dept 12-31-14


,

Default Judgment of Foreclosure Cannot Be Collaterally Attacked in a Plenary Proceeding/Former Property Owner Cannot Contest Sale of Property After Default Judgment of Foreclosure

The Second Department noted that petitioner, Amona, could not bring a plenary action (an Article 78/declaratory judgment proceeding) after a tax foreclosure proceeding in which she defaulted and which resulted in the sale of her property.  Amona's only recourse was a motion to vacate the judgment of foreclosure.  However, Amona's default in the foreclosure action precluded any action to contest the sale of the property:

The Supreme Court properly granted the Conservancy's motion, in effect, to dismiss the petition/complaint. The relief sought herein by Amona should have been pursued by way of a motion to vacate the judgment pursuant to CPLR 317 or CPLR 5015(a) in the in rem tax lien foreclosure proceeding … . “A plenary action or proceeding for such relief does not lie and must be dismissed” … . Since Amona has improperly sought to collaterally attack the judgment by way of this proceeding/action, the Supreme Court properly, in effect, dismissed the proceeding/action.

Moreover, Amona's default in the foreclosure action forever barred and foreclosed her of “all right, title, and interest and equity of redemption in and to the parcel” in which she had had an interest (RPTL 1131). Thus, Amona has no standing to contest the County's sale of the property … (see RPTL 1136[3]…).  Matter of Amona v County of Orange, 2014 NY Slip Op 09125, 2nd Dept 12-31-14

 

,

In an Action Stemming from an Automobile Accident, Having Granted a Default Judgment, Supreme Court Should Not Have Directed Plaintiff to Accept a Late Answer and Allowed Discovery Re: Damages–A Defaulting Defendant Is Not Entitled to Discovery

The Second Department determined Supreme Court, having granted plaintiff's motion for a default judgment on liability in an automobile-accident case, should have also granted plaintiff's motion for an inquest on damages.  Supreme Court should not have ordered plaintiff to accept a late answer and allowed discovery on damages:

Having granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants on the issue of liability, the Supreme Court should have directed an inquest on damages. Since serious injury “is decidedly an issue of damages, not liability” …, the plaintiff will be required to present prima facie proof at the inquest that she sustained a serious injury. However, while the defendants are “entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages” …, they may not conduct discovery with respect to the issue of damages, since defaulting defendants forfeit the right to discovery … . Rudra v Friedman, 2014 NY Slip Op 09117, 2nd Dept 12-31-14


, , ,

Procedure Under Civil Rights Law for Disclosure of Police Personnel Records Described

The Second Department determined plaintiff was entitled to the audiotapes of interviews of police officers which were attached to a report about a high-speed chase that resulted in the death of plaintiff's decedent.  Plaintiff's decedent was killed when the vehicle the police were chasing crashed into plaintiff's decedent's house:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action.” However, Civil Rights Law § 50-a, which codifies the standards for the disclosure of police personnel records …, provides that a police officer's “personnel records, used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). Prior to issuing such an order, the court is obligated to conduct an in camera review of the requested file, “and make a determination as to whether the records are relevant and material in the action before” it, and, upon such a finding “the court shall make those parts of the record found to be relevant and material available to the persons so requesting” (Civil Rights Law § 50-a[3]).

Here, the order dated March 22, 2013, indicated that the Supreme Court had reviewed “the reports sought . . . and all documentation annexed thereto” before concluding that there was “relevant and material” information contained therein (emphasis added). Accordingly, the plaintiff met his burden for compelling disclosure pursuant to Civil Rights Law § 50-a, and the court properly directed the County to disclose the IAB report. However, we perceive no reason why the plaintiff should have been denied access to the audiotapes of the interviews which were identified in the attachments to the IAB report … . The plaintiff should be permitted to hear the actual interviews of the officers regarding the accident, and not only read the IAB report's summaries thereof, since the interviews were the main source material for the IAB report and were incorporated by reference therein … .

“The party opposing disclosure carries the burden of demonstrating that the requested information falls squarely within the exemption'” … . The County has not offered any explanation as to why the audiotapes should not be discoverable, especially since it has already disclosed all of the other source material identified in the attachments to the IAB report. Calhoun v County of Suffolk, 2014 NY Slip Op 09095, 2nd Dept 12-31-14


,

Once the Jury Found Defendant’s Negligence Was Not a Substantial Factor in Causing Plaintiff’s Injuries, the Jury Should Not Have Continued to Deliberate, Make Findings of Comparative Negligence and Apportion Damages—Jury’s Continued Deliberations Were Superfluous—New Trial Not Necessary

The First Department determined a new trial was not necessary where the jury went on to assess comparative fault and damages after finding defendant's negligence was not a substantial factor in causing the plaintiff's injuries.  The jury should have stopped deliberating at that point:

The verdict sheet in this personal injury action instructed the jurors to determine (1) whether defendant was negligent, and (2) if so, whether defendant's negligence was a substantial factor in causing plaintiff's injuries. The jurors found that defendant was negligent, but that his negligence was not a substantial factor in causing plaintiff's injury. The verdict sheet instructed that if the jurors answered the second question in the negative, they should cease deliberations and report their verdict. The jurors, however, continued deliberating and determined that plaintiff was also negligent; that plaintiff's negligence was a substantial factor in causing his own injury; that plaintiff was 95% at fault, and defendant was 5% at fault; and that plaintiff was entitled to $200,000 in damages.

This case is controlled by Pavlou v City of New York (21 AD3d 74 [1st Dept 2005], affd 8 NY3d 961 [2007]), a Labor Law case in which the plaintiff was injured due to a damaged crane hoist. In Pavlou, the jurors determined that the City (the owner of the construction site) was negligent under the Industrial Code, but that its negligence was not a substantial factor in causing the plaintiff's injury. The jury also found that the crane manufacturer was not negligent (id. at 75). The verdict sheet instructed that upon making these findings, the jurors were to stop deliberations. The Pavlou jury, however, went on to find the third-party defendant-employer negligent for operating a damaged crane; the jury then apportioned the employer's degree of fault and fixed the amount of damages (id. at 81). This Court held that the plaintiff was not entitled to a new trial as against the City, stating, “[T]he jury should not have apportioned [the employer's] liability . . . or fixed the amount of damages, once it determined that the violation of the Industrial Code was not a proximate cause and that the crane manufacturer was not negligent. The fact that the jury attempted such an award was a superfluous act that does not require a new trial” (id. at 76). The Court of Appeals affirmed (8 NY3d 961 [2007]).

The same reasoning as in Pavlou applies here. Once the jurors determined that defendant's negligence was not a substantial factor or proximate cause (see PJI 2:70, Proximate Cause — In General; see also PJI 2:36) of plaintiff's injuries, they should not have attempted to assess plaintiff's own negligence and to fix damages. That they did so was a superfluous act that [*2]does not require a new trial. Alcantara v Knight, 2014 NY Slip OP 09030, 1st Dept 12-30-14


, , , , ,

Survey Without Surveyor’s Affidavit Insufficient to Support Plaintiff’s Summary Judgment Motion/Inadmissible Evidence (Survey) May Be Considered to Defeat Defendant’s Summary Judgment Motion/Nuisance Cause of Action Dismissed Because Duplicative of Negligence Cause of Action

In an action stemming from the collapse of a retaining wall between the plaintiff’s and defendant’s properties, the First Department noted that a survey map without an affidavit from the surveyor is insufficient to support plaintiff’s motion for summary judgment, but was sufficient to support the denial of defendant’s motion for summary judgment.  The court also noted that where negligence and nuisance causes of action are duplicative, the nuisance action should be dismissed:

… [A] survey alone, without an accompanying affidavit from the surveyor, does not constitute competent evidence of the location of property lines and fences or retaining walls … . Plaintiff has therefore failed to tender sufficient evidence to demonstrate entitlement to a declaratory judgment on its claim brought pursuant to Administrative Code of City of NY § 28-305.1.1.

Defendant met its prima facie burden as cross movant by submission of the affidavit of a land surveyor who inspected and measured the property subsequent to the collapse of the retaining wall in June 2013, and concluded that no portion of the wall had been upon defendant’s property. That plaintiff’s two surveys indicate that the wall was “on [the] line” of both properties, is sufficient, however, to raise a question as to the location of the wall relative to the two properties; we have long held that otherwise inadmissible evidence may be considered to defeat an application for summary judgment … .

… [W]e find that the claim of negligence is expressed throughout plaintiff’s papers, and there is a question of fact as to whether defendant owed a duty of care to plaintiff, if the retaining wall is found to rest on both parties’ premises. The claim of nuisance, based on allegations that defendant’s ongoing refusal to participate in the repairs and maintenance of the retaining wall substantially interferes with plaintiff’s ability to use and enjoy its property, arises solely from plaintiff’s claim of negligence. Where nuisance and negligence elements are “so intertwined as to be practically inseparable,” a plaintiff may recover only once for the harm suffered … . Upon a search of the record, we conclude that the third cause of action, nuisance, should be dismissed as duplicative of the negligence cause of action, although this argument was not previously made or considered … . 70 Pinehurst Avenue LLC v RPN Mgt Co Inc, 2014 NY Slip Op 09029, 1st Dept 12-30-14

 

, ,

Charging an Additional 10% Contingency Fee for the Appeal, On Top of the 33 1/3% Contingency Fee for the Trial, for a Total Contingency Fee of 43 1/3 %, Was Proper—Motion Court Did Not Have the Power to Alter the Fee Agreement Sua Sponte and the Motion Court No Longer Had Jurisdiction Over the Case When It Made the Alteration

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a dissent, discussed several fundamental issues in reversing Supreme Court's sua sponte award of attorney's fees which differed from the fee agreed to by the plaintiff and the plaintiff's law firm.  The First department held that the 33 1/3% contingency fee for the trial, and an additional 10% contingency for the appeal, amounting to a 43 !/3 % contingency fee, was proper. In addition, the First Department determined the defendant did not have standing to contest the fee, Supreme Court did not have the power to adjust the fee and Supreme Court no longer had jurisdiction over the case at the time it did so:

Initially, we note that defendant has no standing to challenge the fees agreed upon as between plaintiff and his counsel. CPLR 5015(a)(3) provides that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . fraud, misrepresentation, or other misconduct of an adverse party (emphasis added).” Defendant is not an “interested person” within the meaning of the statute, as even the motion court appeared to recognize. Defendant will pay the same amounts pursuant to the judgment regardless of the division of fees as between plaintiff and his counsel. …

Further, there is no evidence whatsoever that the judgment was procured by fraud, misrepresentation or other misconduct by plaintiff or his attorneys. …

Defendant having no standing under CPLR 5015(a)(3) to challenge the separate fee for appellate work, the court relied on its “inherent authority” to reach the issue. A court, however, has no inherent authority to sua sponte reach the issue of attorneys' fees … .

Moreover, Supreme Court was without jurisdiction to revisit the issue of the propriety of the fees, even upon the motion of a proper party. Since the Court of Appeals denied applications for review … the judgment was final, and Supreme Court lacked jurisdiction to, in effect, reverse the Court by modifying the judgment … .

Plaintiff's expert, a leading expert on legal ethics, opined that it was legally and ethically permissible for the firm to collect a separate fee for appellate work, notwithstanding that the firm is entitled, under the original retainer, to a contingency fee of one third of the recovery. Plaintiff's expert opined that limiting counsel's contingent fee to that encompassed in the initial retainer “does not advance the purpose behind Section 603.7 [Rules of the Appellate Division] . . . i.e., protecting clients from gouging by attorneys.” The expert also observed that had plaintiff chosen to retain new counsel for the appeal, there would be absolutely no question that the new counsel would be entitled to a fee for his or her work, notwithstanding the fact that trial counsel was entitled to receive 33 1/3% of any recovery. Plaintiff's expert noted that it would be “anomalous” to assert that trial counsel should be compensated less favorably than new counsel for performing the work that had not been contemplated by the initial retainer. Stewart v New York City Tr Auth, 2014 NY Slip Op 09063, 1st Dept 12-30-14


Although Not Raised by the Defendant Below, the Appellate Court Vacated the Default Pursuant to CPLR 317

The Second Department determined plaintiff's motion for leave to file a default judgment was properly denied and defendant was properly allowed to serve a late answer.  Although the defendant failed to explain why it failed to file the correct address for service of process with the Secretary of State, there was no question that the defendant did not receive notice of the summons in time to defend and did nothing to deliberately avoid service.  The Second Department used CPLR 317 as its basis for vacating the default, even though that ground was not cited by the defendant below:

Although the defendant did not cite to CPLR 317 in opposition to the plaintiffs' motion, under the circumstances of this case, this Court may consider CPLR 317 as a basis for vacating the default (see CPLR 2001…). CPLR 317 permits a defendant who has been “served with a summons other than by personal delivery” to defend the action upon a finding by the court that the defendant “did not personally receive notice of the summons in time to defend and has a meritorious defense” (CPLR 317…). Here, the record reveals that neither the defendant nor its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend itself against this action … . There is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process, especially since the plaintiffs had knowledge of the defendant's actual business address … . In addition, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Gershman v Midtown Moving & Storage Inc, 2014 NY Slip Op 08959, 2nd Dept 12-24-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy