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​ THE COMPLAINT ALLEGED AN ORAL JOINT VENTURE AGREEMENT BUT DID NOT ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES; THE STATUTE OF FRAUDS THEREFORE APPLIED AND THE COMPLAINT WAS DISMISSED; PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to amend the complaint should have been granted. The initial breach of contract complaint was dismissed because it was not alleged the parties to the oral joint venture agreed to share the losses (therefore the statute of frauds applied to the agreement). The amendment sought to include the allegation the parties agreed to share the losses:

… Supreme Court improperly denied the plaintiff’s motion on the basis that the breach of contract causes of action in the amended complaint had previously been dismissed … . Moreover, under the circumstances here, the court should have granted the plaintiff’s motion. The defendants cannot be prejudiced or surprised by the proposed amendments, which were premised upon the same facts, transactions, or occurrences alleged in the amended complaint and “simply sought to cure the deficiencies cited by the Supreme Court in its earlier order which resulted in the dismissal” … . Further, the plaintiff explained that the omission of a loss-sharing allegation from the amended complaint was inadvertent, and he diligently sought to amend the pleading to correct the defect … . Benjamin v 270 Malcolm X Dev., Inc., 2023 NY Slip Op 01275, Second Dept 3-15-23

Practice Point: In the absence of prejudice amendment of a complaint should be allowed. Here the complaint was dismissed because plaintiff did not allege the parties agreed to share the losses in an oral joint venture agreement which triggered the statute of frauds. Plaintiff’s motion to amend the complaint to allege the parties agreed to share the losses should have been granted.

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION AFTER PLAINTIFF FAILED TO MEET A DEADLINE SET IN A STATUS CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this foreclosure proceeding should not have, sua sponte, dismissed the complaint when plaintiff did not move for a judgment of foreclosure and sale by the deadline set in a status conference order:

On March 22, 2017, the Supreme Court issued a status conference order … directing the plaintiff to “file an application for a [j]udgment of [f]oreclosure [and] sale” by June 7, 2017. The plaintiff failed to do so. In an order entered June 15, 2017 (hereinafter the dismissal order), the court, sua sponte, directed dismissal of the complaint and cancellation of the notice of pendency.

A court’s power to dismiss an action, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal … . Here, the plaintiff’s failure to move for a judgment of foreclosure and sale as directed by the … status conference order was not a sufficient ground upon which to sua sponte direct dismissal of the complaint and cancellation of the notice of pendency … . Deutsche Bank Trust Co. Ams. v Martinez, 2023 NY Slip Op 01179, Second Dept 3-8-23

Practice Point: Sua sponte dismissals of complaints are disfavored. Here the failure to meet a deadline set in a status conference did not justify a sua sponte dismissal of the complaint.

 

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FATHER’S PETITION TO SUSPEND CHILD SUPPORT WAS PROPERLY DISMISSED BUT THE DISMISSAL SHOULD NOT HAVE BEEN “WITH PREJUDICE” BECAUSE FAMILY COURT HAS CONTINUING JURISDICTION OVER SUPPORT MATTERS (SECOND DEPT).

The Second Department, modifying Family Court, determined that although father’s petition to suspend child support was properly dismissed, it should not have been dismissed “with prejudice:”

Family Court properly dismissed that branch of the father’s petition which was to suspend his basic child support obligation on the ground of parental alienation without a hearing … .

However, the Family Court should not have provided that the dismissal was “with prejudice.” The court has continuing jurisdiction to modify, set aside, or vacate a prior order of child support pursuant to Family Court Act § 451 … . Matter of Lew v Lew, 2023 NY Slip Op 01192, Second Dept 3-8-23

Practice Point: Family Court has continuing jurisdiction over support matters. Therefore father’s petition to suspend child support, although properly dismissed, should not have been dismissed “with prejudice.”

 

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A JUDGE MAY NOT ORDER THAT ONLY THE ATTORNEY FOR THE CHILD (AFC), AND NOT THE DEPARTMENT OF SOCIAL SERVICES, IS ALLOWED TO DISCUSS MATTERS OF SURRENDER OR ADOPTION WITH THE CHILD; SUCH AN ORDER INTERFERES WITH THE DEPARTMENT’S STATUTORY DUTIES (THIRD DEPT).

The Third Department, reversing Family Court in a matter of first impression in this neglect proceeding, in a full-fledged opinion by Justice Clark, determined Family Court could not order the petitioner (Delaware County Department of Social Services) to refrain from discussing matters of surrender or adoption with the child. The attorney for the child (AFC) requested the order which allowed only the AFC to discuss surrender or adoption with the child. The Third Department heard the case as an exception to the mootness doctrine (the order had been vacated, but the issue is likely to recur). The Third Department concluded the order could not stand because it interfered with the petitioner’s statutory duties:

Although we recognize that circumstances may arise where it may be appropriate to allow an attorney for children reasonable time to discuss sensitive matters of importance, such as adoption or surrender, with their child-client before anyone else does, Family Court’s order was not a temporal arrangement to allow the AFC an opportunity to broach the issue with the child. Instead, the order was an outright ban on anyone, including petitioner’s caseworkers, having a discussion with the child regarding issues that are central to the child’s permanency (see Family Ct Act § 1089 [c] [1] [ii]).

Although Family Court attempted to differentiate the issues of surrender and adoption as “a legal issue distinguishable from the assessment of the child’s well-being,” the court construed the issues pertaining to the child’s well-being too narrowly, leaving petitioner in an untenable situation…. According to petitioner, for over a year, it was prevented “from speaking with the child to reassess its understanding of the child’s wishes” relative to respondent’s possible conditional surrender and a subsequent adoption of the child — issues that fall squarely into the category of permanency decisions. Although the child has a right to meaningful representation and to learn about legal issues from the AFC (see Family Ct Act § 241 …), attorneys for children cannot transform such responsibility into a roadblock, as occurred here, preventing petitioner from fulfilling its mandates and planning for the child’s permanency and well-being … . Matter of Michael H. (Catherine I.), 2023 NY Slip Op 01119, Third Dept 3-2-23

Practice Point: Family Court can not order the Department of Social Services to refrain from discussing matters of surrender or adoption with the child. Here the attorney for the child (AFC) asked Family Court for the order allowing only the AFC to discuss surrender or adoption with the child and the request was granted.

 

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AFTER AN IMPORTANT PLAINTIFFS’ WITNESS BECAME ILL DURING CROSS-EXAMINATION AND WAS TAKEN BY AMBULANCE TO THE HOSPITAL, THE JUDGE, SUA SPONTE, DECLARED THE WITNESS UNAVAILABLE, STRUCK HIS TESTIMONY AND ADMITTED HIS DEPOSITION TESTIMONY; THERE WAS NO SUPPORT IN THE RECORD FOR THE FINDING THE WITNESS WOULD BE UNABLE TO TESTIFY; JUDGMENT REVERSED (SECOND DEPT).

The Second Department, reversing the judgment after trial, determined the trial judge should not have, sua sponte, announced that an important witness for plaintiffs (Awad) was unavailable due to illness, struck the witness’s testimony and admitted the witness’s deposition testimony:

During his cross-examination, Awad fell ill, and was taken from the courthouse by ambulance. …

CPLR 3117(a)(3)(iii) permits the reading of a witness’s deposition at trial where the court finds “that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment” … . In exercising its discretion under CPLR 3117, “the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present [its] case” … .

Here, there is no information in the record regarding the nature of Awad’s illness or the treatment he received, or whether he was hospitalized and for how long. Thus, the Supreme Court’s sua sponte determination that Awad was unavailable to testify due to sickness or infirmity lacked support in the record, and the court improvidently exercised its discretion in determining that Awad’s deposition testimony was admissible under CPLR 3117(a)(3)(iii) … . 244 Linwood One, LLC v Tio Deli Grocery Corp., 2023 NY Slip Op 01072, Second Dept 3-1-23

Practice Point: Here a witness became ill during cross-examination and was taken to the hospital by ambulance. Without putting any additional information on the record, the judge declared the witness unavailable, struck his testimony and admitted his deposition. Because there was no support in the record for the judge’s (sua sponte) determination the witness would not be able to testify, the judgment after trial was reversed.

 

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FAMILY COURT SHOULD NOT HAVE DISMISSED FATHER’S MODIFICATION OF CUSTODY PETITION WITHOUT HOLDING A BEST INTERESTS HEARING, SHOULD HAVE ACCEPTED THE FACTS ALLEGED IN THE PETITION AS TRUE, AND SHOULD NOT HAVE RELIED ON UNSWORN INFORMATION FROM THE ATTORNEYS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father’s petition for a modification of custody should not have been dismissed without holding a best interests hearing. The Third Department noted that Family Court should have accepted the facts alleged in the petition as true and should not have relied on unsworn information provided by the attorneys:

… [F]ather’s petition sufficiently alleged … changed circumstances that, if established at a hearing, would entitle him to a best interests review, including that the mother had thwarted the electronic communication to which he was entitled … , failed to keep him informed of certain health information pertaining to the child and, upon information and belief, was found to have neglected the child … . Even if such circumstances do not ultimately result in an award of joint legal custody as sought by the father, his petition also sought increased visitation and unsupervised parenting time. These changed circumstances, if established, would support a best interests review to determine whether such relief is warranted based upon the totality of the evidence. Matter of Ryan Z. v Adrianne AA., 2023 NY Slip Op 01032, Third Dept 2-23-23

Practice Point: In determining whether a best interests hearing is required when a petition for modification of custody is filed, the facts alleged must be accepted as true. The judge here should not have relied on unsworn information from the attorneys.

 

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IN THIS DIVORCE ACTION, THE SETTLEMENT AGREEMENT STATED THE WIFE’S INCOME WAS WELL BELOW THE FEDERAL POVERTY LEVEL YET SHE WAIVED SPOUSAL SUPPORT; GENERAL MUNICIPAL LAW 5-311 MAY, THEREFORE, HAVE BEEN VIOLATED; ALTHOUGH THE AGREEMENT AS A WHOLE WAS NOT UNCONSCIONABLE, THE MATTER WAS SENT BACK TO ALLOW THE JUDGE TO ENQUIRE ABOUT THE WAIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this divorce action, determined a portion of the settlement agreement may violate the General Municipal Law and sent the matter back for further inquiry by the judge. The wife’s income is well below the federal poverty guidelines yet she waived spousal support:

General Obligations Law § 5-311 prohibits spouses from contracting to dissolve a marriage and “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge …”. * * *

… [A]rticle four of the settlement agreement, concerning spousal support, sets forth the wife’s income as $11,446, which is well below the applicable federal 2020 poverty guidelines … . As such, there is a question as to whether this provision is in violation of General Obligations Law § 5-311 in that the wife “is likely to become a public charge.” Because of this, we find that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife’s waiver of spousal support … .Majid v Hasson, 2023 NY Slip Op 01035, Third Dept 2-23-23

Practice Point: The settlement agreement in this divorce action was not unconscionable, but a provision may violate the General Municipal Law which prohibits agreeing to a level of support which will result in the wife becoming a public charge. The wife’s income is well below the federal poverty level, yet she waived spousal support. The matter was sent back for judicial inquiry into the waiver.

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COVID STIMULUS PAYMENTS WERE ADVANCE TAX REFUNDS MEASURED BY THE NUMBER OF CHILDREN, NOT PAYMENTS FOR THE BENEFIT OF THE CHILDREN; THEREFORE THE PAYMENTS WERE SUBJECT TO EQUITABLE DISTRIBUTION IN THIS DIVORCE PROCEEDING AND SHOULD NOT HAVE BEEN AWARDED TO MOTHER AS CHILD SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined the COVID stimulus payments were advance tax refunds constituting marital property subject to equitable distribution in this divorce/family offense proceeding. Family Court had ordered father to turn over the stimulus payments to mother as temporary child support:

… [F]ather argues that the federal stimulus payments are subject to equitable distribution and, therefore, Family Court did not have jurisdiction to direct him to remit them to the mother. We agree. “Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … . In response to the global pandemic, Congress enacted several economic stimulus payments which created advance refunds of tax credits. As relevant here, the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) … provided eligible individuals an “advance refund amount” of the applicable tax credit of $500 for each qualifying child … . Thereafter, eligible individuals were entitled to an additional “advance refund” of the applicable tax credit of $600 for each qualifying child under the Tax Relief Act of 2020 … .

… [T]hese federal stimulus payments were not paid “for the benefit of the minor children,” but they were the parties’ advance refund for a tax credit earned pursuant to their last tax return, which was jointly filed, and which was partially measured by the number of children the tax filers had listed as dependents … . Generally, a tax refund is marital property and subject to equitable distribution by Supreme Court … . Although, within the context of a family offense petition, Family Court may issue an order for temporary child support (see Family Ct Act § 828 [4]), and there could be appropriate circumstances where a party’s tax refund may be seized to satisfy child support obligations … , those circumstances are not present here. Matter of Josefina O. v Francisco P., 2023 NY Slip Op 01031, Third Dept 2-23-23

Practice Point: COVID stimulus payments were advance tax refunds subject to equitable distribution in a divorce proceeding which should not have been awarded to mother as child support.

 

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FAMILY COURT ABUSED ITS DISCRETION IN FAILING TO CONDUCT AN IN CAMERA INTERVIEW WITH THE CHILD BEFORE DENYING MOTHER’S PETITION FOR IN-PERSON PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the denial of mother’s petition for in-person parental access was not supported by the record, in part because the judge did not conduct an in camera interview with the child:

The Family Court’s determination, in effect, denying that branch of the mother’s petition which was for in-person parental access lacked a sound and substantial basis in the record. “The decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court” … . Here, the court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence … . The child is of such an age and maturity that his preferences are necessary to create a sufficient record to determine his best interests … . Matter of Badal v Wilkinson, 2023 NY Slip Op 00997, Second Dept 2-22-23

Practice Point: Here Family Court should have conducted an in-person interview with the child before denying mother’s petition for in-person parental access. The failure to conduct the interview was deemed an abuse of discretion.

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WHERE ONE OF TWO RELATED FORECLOSURE ACTIONS IS SUBJECT TO A MERITORIOUS MOTION TO DISMISS AS TIME-BARRED, IT IS AN ABUSE OF DISCRETION TO GRANT A MOTION TO CONSOLIDATE THE TIME-BARRED ACTION WITH THE TIMELY ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined that where one action is subject to a meritorious motion to dismiss as time-barred, it is an abuse of discretion for a judge to grant a motion to consolidate that action with another which is timely:

… [B]oth actions are to foreclose on the same mortgage securing the same debt owed by the same defendant. However, in our view, a precondition for merging two or more actions is that each action should itself be viable, meaning that neither is confronted with a pending—and apparently meritorious—motion to dismiss. Once the defendant here met her burden of establishing, prima facie, that the time in which to commence the 2017 action had expired, it became the plaintiff’s burden to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period. The plaintiff could not meet that shifted burden by merely asserting that the 2017 action will become timely once it is merged with the timely 2008 action. The purpose of consolidation under CPLR 602(a) is not to provide a party with a procedural end run around a legal defense applicable to one of the actions. In our opinion, in such instances, judicial discretion should not be used to cure the untimeliness of one action by tethering it to a related timely action. We hold, as an issue of apparent first impression that, in this case, the Supreme Court improvidently exercised its discretion in granting consolidation and that, in general, consolidation should be denied where one of the cases to be consolidated is subject to a meritorious motion to dismiss…. . HSBC Bank USA, N.A. v Francis, 2023 NY Slip Op 00992, Second Dept 2-22-23

Practice Point: Here there were two related foreclosure actions. One was subject to dismissal as time-barred and the other was timely. The two should not be consolidated as an end-run around the statute of limitations.

 

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