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THE EVIDENCE INDICATED VISITATION WITH FATHER WOULD NOT BE IN THE BEST INTERESTS OF THE CHILD; FATHER’S PETITION FOR VISITATION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence indicated visitation with father would not be in the best interests of the child and his petition for visitation should not have been granted:

… [I]t is undisputed that the father has not lived with the child in over a decade and has only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father also made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself . . . of opportunities for visitation over a lengthy period of time is appropriately taken into account in considering whether visitation is appropriate” … .

… [T]he mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child and, although the father disputed those claims, we defer to Family Court’s assessment that the father’s testimony was not credible … . * * * [T]he attorney for the child confirmed to Family Court, and now advises us, that the teenage child is upset by interactions with the father for a variety of reasons and does not wish to see him. The child’s preference to have no in-person contact with the father is not dispositive, but is entitled to “considerable weight” given the child’s age … . Matter of Ajmal I. v LaToya J., 2022 NY Slip Op 05912, Third Dept 10-20-22

Practice Point: Although visitation with a parent is generally considered to be in the child’s best interests, here father’s years-long lack of contact with the child, misbehavior during prior contact, and the child’s opposition to visitation, demonstrated visitation with father was not in the child’s best interests. The petition for visitation should not have been granted.

 

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THERE WAS SUFFICIENT EVIDENCE, INCLUDING EXPERT EVIDENCE, OF DEFENDANT’S INTOXICATION TO RAISE A DOUBT WHETHER DEFENDANT FORMULATED THE INTENT TO COMMIT ASSAULT SECOND; THE REQUEST FOR THE INTOXICATION JURY CHARGE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined there was sufficient evidence of defendant’s intoxication to warrant the jury charge on intoxication. There was enough evidence of intoxication to support a doubt whether defendant was able to formulate the requisite intent to commit assault second:

“To warrant the submission of an intoxication charge to a jury, there must be sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . When making the determination as to whether an intoxication charge is warranted, the evidence must be viewed “in the light most favorable to the defendant” … . “[A]lthough a relatively low threshold exists to demonstrate entitlement to an intoxication charge” … , “[e]vidence of intoxication, even under this standard, requires more than a bare assertion by a defendant that he [or she] was intoxicated” … . * * *

Here, in proving assault in the second degree, the People had the burden of establishing that defendant possessed the intent to “cause serious physical injury to another person” … . Although there was testimony that defendant was loud and obnoxious and was arguing with the bartender about the benefit poster just prior to the altercation, there was no testimony regarding interactions between the victim and defendant just prior to the altercation, which could have left a question in the jurors’ minds as to defendant’s intent and how things escalated as quickly as they did … . The testimony at trial regarding defendant entering the bar with a beer, consuming two more drinks prior to being refused service, coupled with the surveillance footage, established that the suspect consumed multiple alcoholic beverages within a short period of time prior to the assault … . Moreover … the surveillance footage revealed that someone looking strikingly similar to defendant consumed several alcoholic beverages hours before the assault and that, upon returning to the bar, exhibited markedly different behavior from earlier in the evening. Additionally, … the People’s expert witness testified that consumption of alcohol in excess can alter one’s personality, which supported his theory of voluntary intoxication. People v Adrian, 2022 NY Slip Op 05896, Third Dept 10-20-22

Practice Point: Here there was sufficient evidence, including expert evidence, of defendant’s intoxication to raise a doubt about whether defendant formulated the intent to commit assault second. Defendant’s request for the intoxication jury charge should have been granted.

 

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THE EVIDENCE DID NOT DEMONSTRATE A CHANGE IN CIRCUMSTANCES WARRANTING A MODIFICATION OF THE CUSTODY ARRANGEMENT, FAMILY COURT REVERSED (THIRD DEPT). ​

The Third Department, revering Family Court, determined the evidence did not demonstrate a change in circumstances sufficient to warrant a modification of the custody arrangement:

The father’s primary contention was that the change in his work schedule constituted a sufficient change in circumstances. In that regard, at the time that the 2016 order was entered, the father was working weekday night shifts. When the father filed the instant petition, his work schedule was such that he was working a continuous four-day-on, four-day-off schedule. However, in the midst of the hearing, the father revealed that his work schedule had again changed, this time to Monday through Thursday from 4:00 p.m. to 2:00 a.m., which aligned much more closely with his schedule as of the 2016 order. In our view, this does not constitute a sufficient change in circumstances to trigger a best interests analysis. As for the other factors relied upon by Family Court, there was no showing that the mother’s new job, the parties’ new residences, their new relationships, or the introduction of half-siblings and a stepsibling into the child’s life “constitute[d] changed circumstances evidencing any infirmity in the present custody arrangement” … . Accordingly, the father failed to meet his burden of establishing the necessary change in circumstances, and the petition should have been dismissed. Matter of Kenneth N. v Elizabeth O., 2022 NY Slip Op 05904, Third Dept 10-20-22

Practice Point: Here the evidence relied on by Family Court did not amount to a change in circumstances warranting a modification of custody. The evidence included: mother’s new job, the parties’ new residences, the parties’ new relationships, and more children.

 

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THE EVIDENCE DID NOT SUPPORT FAMILY COURT’S SUA SPONTE FINDING THERE HAD BEEN A CHANGE IN CIRCUMSTANCES, I.E., A BREAKDOWN IN COMMUNICATION BETWEEN MOTHER AND FATHER, WARRANTING A MODIFICATION OF THE CUSTODY ARRANGEMENT AND AWARDING SOLE CUSTODY TO MOTHER (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should not have, sua sponte, found there had been a change in circumstances, i.e., a breakdown in communication between mother and father,  justifying awarding sole custody to mother. The evidence did not support the finding that communication had broken down:

… Family Court erred in determining that the parties being unwilling or unable to cooperatively raise the child constituted a change in circumstances and sua sponte modifying the prior order. … Initially, the parties did provide some evidence as to how each has failed to properly communicate with respect to the child, such as the father being unresponsive to the mother’s messages regarding child support payments and the mother failing to inform him that she had unenrolled the child from daycare. However, the mother acknowledged that the father has been able to communicate with her via the TalkingParents app to discuss issues regarding the child, such as custodial exchange dates. The father similarly stated that he has been able to communicate with the mother via email. Thus, although their communication is strained at times, partially as a result of these proceedings, the record does not establish that it has completely broken down … . Indeed, “[t]he record establishes that the parties’ relationship was no more antagonistic during [the relevant time] period than it was at the time of the entry of the original order” … , which, in this case, was only two months prior to the filing of the father’s petition. Accordingly, Family Court should not have proceeded to a best interest analysis and, instead, should have continued the joint legal custody arrangement reflected in the prior order … .Matter of Karl II. v Maurica JJ., 2022 NY Slip Op 05905, Third Dept 10-20-22

Practice Point: Here the evidence did not support the Family Court judge’s sua sponte finding that communication between mother and father had broken down warranting a modification of the custody arrangement.

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE IT WAS THE HOLDER OF THE NOTE AND DID NOT DEMONSTRATE POSSESSION OF THE NOTE AT THE TIME THE ACTION WAS BROUGHT BECAUSE THE NOTE ITSELF WAS NOT ATTACHED TO THE LOAN SERVICER’S AFFIDAVIT; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank should not have been awarded summary judgment in this foreclosure action because it did not demonstrate standing to foreclose:

… [T]here was no evidence that the plaintiff is the assignee of the note, and a triable issue of fact exists as to whether the plaintiff was the holder of the note at the time this action was commenced. A promissory note is a negotiable instrument within the meaning of the Uniform Commercial Code (see UCC 3-104[2][d] …) “holder” is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” (UCC 1-201[b] [21][A] …). In the present case, there is a triable issue of fact as to whether the note was properly specially endorsed by an allonge “so firmly affixed thereto as to become a part thereof” when it came into the possession of the plaintiff (UCC 3-202[2] …).

Further, the affidavit of Verdooren [loan servicer employee] and the accompanying business records were insufficient to establish the plaintiff’s standing … . Although the foundation for the admission of a business record may be provided by the testimony of the custodian, “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” ( … see CPLR 4518[a]). Here, although Verdooren stated that Wells Fargo had possession of the note on the plaintiff’s behalf at the time the action was commenced, the documents attached to Verdooren’s affidavit failed to establish this fact. Bank of N.Y. Mellon Trust Co., N.A. v Andersen, 2022 NY Slip Op 05827, Second Dept 10-19-22

Practice Point: If the defendant raises the lack-of-standing defense in a foreclosure action, the bank must demonstrate the plaintiff was the assignee of the note and the note was in its possession when the action was brought. Here the plaintiff did not show the note was properly endorsed by an attached allonge when it came into plaintiff’s possession and the note was not attached to the loan servicer’s affidavit, rendering the affidavit hearsay.

 

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THE AFFIDAVIT SUBMITTED BY THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISIONS OF RPAPL 1304 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in this foreclosure action, determined plaintiff bank did not not submit sufficient proof of compliance with the notice-of-default provisions of RPAPL 1304. Among other deficiencies, the documents necessary to prove the notice was mailed were not attached to the affidavit stating the mailing requirements were met:

… [P]laintiff failed to establish, prima facie, that it complied with RPAPL 1304. Although Crystal Jean McClelland, a vice president of loan documentation for the plaintiff, stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. The plaintiff failed to provide any documentation from the United States Post Office demonstrating that the notice was sent by registered or certified mail. Further, while McClelland attested that she was familiar with the business records maintained by the plaintiff, had personal knowledge of the operation of and the circumstances surrounding the preparation, maintenance, distribution, and retrieval of records in the plaintiff’s record-keeping system, and had knowledge of how the plaintiff drafted, generated, triggered, sent, and stored letters in the servicing process, she did not present proof of a standard office mailing procedure by the plaintiff designed to ensure that items are properly addressed and mailed. Since the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304 … . Wells Fargo Bank, N.A. v Kowalski, 2022 NY Slip Op 05887, Second Dept 10-19-22

Practice Point: Another example of what the banks get wrong when trying to prove strict compliance with the foreclosure notice-of-default provisions of RPAPL 1304 at the summary judgment stage.

 

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THE MAJORITY DETERMINED PLAINTIFF DID NOT TIE HIS DIMINISHED RANGE OF MOTION TO THE TRAFFIC ACCIDENT, AS OPPOSED TO HIS PRE-EXISTING CONDITIONS, AND THEREFORE PLAINTIFF DID NOT DEMONSTRATE “SERIOUS INJURY;” THE DISSENT ARGUED THE NATURE OF THE ACCIDENT (DEFENDANTS’ TRUCK REAR-ENDED PLAINTIFF’S CAR AT 45 MILES PER HOUR) SHOULD BE CONSIDERED AND DEFENDANT MUST TAKE THE PLAINTIFF AS HE OR SHE FINDS HIM (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined plaintiff did not raise a question of fact about whether he suffered serious injury within the meaning of Insurance Law 5102 in this rear-end traffic accident case. [Editor’s Note: Decisions determining whether plaintiff suffered “serious injury” within the meaning of the No-Fault Law are not covered in the New York Appellate Digest because each analysis is necessarily unique and fact-specific. This “serious injury” decision has been summarized because there is a two-justice dissent arguing (1) the nature of the accident, defendants’ truck rear-ending plaintiff’s car at 45 miles per hour, should have been considered, (2) the defendant must take the plaintiff as he or she finds him, and (3) there are questions of fact whether plaintiff’s pre-existing conditions were aggravated by the accident.]:

… [P]laintiff did not provide … objective medical evidence distinguishing his preexisting back condition from its purported exacerbation in the November 2016 accident — such as, for example, proof tying the diminished ranges of motion observed by [plaintiff’s expert] in March 2021 to the November 2016 accident rather than plaintiff’s prior degenerative back problems — or demonstrating a causal link between any exacerbation and the self-reported limitations on plaintiff’s activities for purposes of his 90/180-day claim … .

From the dissent:

The facts regarding the accident are not in dispute. Defendant Alton E. Horn was driving a 1998 Kenworth tractor trailer at a speed of 45 miles per hour when he rear-ended plaintiff. While we could find no postaccident photographs of the vehicles in the record, Horn stated that the impact bent his bumper and pushed the hood up on his tractor trailer, and plaintiff referred to his vehicle as “totaled.” Plaintiff was removed from the scene by ambulance and was administered morphine en route to the hospital. Although plaintiff was released from the hospital that night, he reported that he was bedridden for the next 10 days. During oral argument, defendants’ counsel urged us to ignore these facts attendant to the actual accident, however we could find no case law that mandates that the Court leave its common sense at the door. Simply put, the facts do matter. Finally, it is undisputed that, although plaintiff had not undergone surgery to alleviate the discomfort in his lower back before the accident, he has since.

… [E]very first-year law student is aware of the eggshell plaintiff axiom, namely that the defendant must take the plaintiff as he or she finds him, i.e., the plaintiff may recover to the extent that the accident aggravated his or her preexisting conditions … . Lemieux v Horn, 2022 NY Slip Op 05739, Second Dept 10-13-22

Practice Point: The majority concluded the plaintiff’s evidence did not link his current range of motion limitations to the traffic accident, as opposed to his pre-existing conditions. Therefore plaintiff did not demonstrate “serious injury” within the meaning of the Insurance Law. The two-justice dissent argued the nature of the accident–defendants’ truck rear-ended plaintiff’s car at 45 miles per hour–and plaintiff’s medical evidence raised a question of fact about whether plaintiff’s pre-existing conditions were aggravated by the accident.

 

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A DRAINAGE GRATE WHICH DOES NOT VIOLATE ANY CODE AND WHICH IS NOT DEFECTIVE IS NOT A DANGEROUS CONDITION SIMPLY BECAUSE IT WAS WET FROM RAIN AT THE TIME OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the drainage grate on which plaintiff slipped and fell was not a dangerous or defective condition. The grate did not violate any code and was not defective. The fact that the grate was wet from falling rain did not demonstrate a dangerous condition:

A property owner has a duty to maintain his or her premises in a reasonably safe condition … . “In order for a landowner to be liable in tort to a plaintiff who is injured as a result of a dangerous or defective condition upon the landowner’s property, the plaintiff must establish, among other things, that a dangerous or defective condition actually existed” … . Here, the defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that the metal drainage grate, which was not in violation of any applicable code, was not in a defective or hazardous condition and that it maintained its premises in a reasonably safe condition … . The mere fact that the grate was wet from the falling rain was insufficient to establish the existence of a dangerous condition … . Shuttleworth v Saint Margaret’s R.C. Church in Middle Vil., 2022 NY Slip Op 05730, Second Dept 10-12-22

Practice Point: Here a drainage grate which did not violate any code and which was not defective was not a dangerous condition simply because it was wet with rain at the time of the slip and fall.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING MOTHER NEGLECTED HER TWO-MONTH OLD CHILD BY EXPOSING THE CHILD TO DOMESTIC VIOLENCE; THAT THE CHILD MAY HAVE HEARD LOUD ARGUING BEFORE GRANDMOTHER TOOK THE CHILD TO HER APARTMENT WAS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support finding mother abused her two-month old child. The child, who was removed from the scene by the grandmother before the acts of domestic violence took place:

“‘[A] finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence'” … . “However, ‘exposing a child to domestic violence is not presumptively neglectful,'” and “‘[n]ot every child exposed to domestic violence is at risk of impairment'” . “The Legislature’s requirement of actual or imminent danger of impairment prevents st… ate intrusion into private family life in the absence of ‘serious harm or potential harm to the child, not just . . . what might be deemed undesirable parental behavior'” … .

While testimony was elicited from the paternal grandmother that the subject child, then under two months old, was somewhere in an apartment with the mother and the father while they yelled at each other, the grandmother testified that she removed the child from that apartment prior to any acts of domestic violence. The evidence that the mother and the father engaged in a loud verbal argument in the presence of their infant child was insufficient to establish that the child’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired … . Matter of Kingston T. (Diamond T.), 2022 NY Slip Op 05694, Second Dept 10-12-22

Practice Point: Mother’s two-month-old child may have heard loud arguing before grandmother removed the child from the scene. The evidence did not support a finding mother neglected the child by exposing the child to domestic violence.

 

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ALTHOUGH FATHER DEMONSTRATED HIS FAILURE TO PAY CHILD SUPPORT WAS NOT WILLFUL, FAMILY COURT SHOULD HAVE ENTERED A MONEY JUDGMENT BASED ON HIS FAILURE TO OBEY THE LAWFUL ORDER OF CHILD SUPPORT (SECOND DEPT). ​

The Second Department, modifying Family Court, determined that although father demonstrated his failure to pay child support was not willful, a money judgment for father’s failure to obey a lawful order of child support should have been entered:

“Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support” … . Here, the mother presented evidence at the hearing of the father’s failure to pay child support as ordered. Specifically, the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support in the sum of $19,591.43. Therefore, the mother met her prima facie burden … .

The burden then shifted to the father to offer some competent, credible evidence that his failure to pay child support in accordance with the order was not willful … . The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. “Great deference should be given to the credibility determinations of the Support Magistrate, who is in the best position to assess the credibility of the witnesses” … .. Under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful.

Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should be entered in favor of the mother for the amount of child support arrears that accrued during the relevant period … . Matter of Santman v Schonfeldt, 2022 NY Slip Op 05693, Second Dept 10-12-22

Practice Point: Here father demonstrated his failure to pay child support was not willful. But the court still should have entered a money judgment against father based upon his failure to obey a lawful order of child support.

 

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