You are here: / First Department

Tag Archive for: First Department

FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT). ​

The First Department, reversing Family Court, determined that father’s petition to modify custody should not have been denied without a hearing. Mother had relocated to Florida without father’s consent or the permission of the court:

Family Court correctly determined that the mother’s testimony about her unilateral relocation constituted a change in circumstances, triggering an inquiry into whether the child remaining in the mother’s custody in Florida is in the child’s best interests … . However, the court abused its discretion in making a final determination on that issue without a full hearing at which the parties and the child’s attorney had an opportunity to present relevant evidence. The question of a child’s relocation out of state necessarily requires “due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child … . [C]ustody and visitation decisions should be made with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life”… . Relevant factors include the parties’ good faith in requesting or opposing the move, the child’s attachments to each parent, the quality of the life-style that the child would have if the proposed move were permitted or denied, the effect that the move may have on any extended family relationships, and whether a visitation plan can be achieved that permits the noncustodial parent to maintain a meaningful parent-child relationship (id.). In this case, since the father had raised concerns in his petition about the child’s education, the parties should have had the opportunity to present evidence about this, in addition to other relevant factors. Matter of Michael B. v Latasha T.-M., 2018 NY Slip Op 07929, First Dept 11-20-18

FAMILY LAW (RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/CUSTODY (FAMILY LAW, RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/RELOCATION (FAMILY LAW, CUSTODY, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))

FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT).

The First Department, reversing Family Court, determined that father’s petition to modify custody should not have been denied without a hearing. Mother had relocated to Florida without father’s consent or the permission of the court:

Family Court correctly determined that the mother’s testimony about her unilateral relocation constituted a change in circumstances, triggering an inquiry into whether the child remaining in the mother’s custody in Florida is in the child’s best interests … . However, the court abused its discretion in making a final determination on that issue without a full hearing at which the parties and the child’s attorney had an opportunity to present relevant evidence. The question of a child’s relocation out of state necessarily requires “due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child … . [C]ustody and visitation decisions should be made with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life”… . Relevant factors include the parties’ good faith in requesting or opposing the move, the child’s attachments to each parent, the quality of the life-style that the child would have if the proposed move were permitted or denied, the effect that the move may have on any extended family relationships, and whether a visitation plan can be achieved that permits the noncustodial parent to maintain a meaningful parent-child relationship (id.). In this case, since the father had raised concerns in his petition about the child’s education, the parties should have had the opportunity to present evidence about this, in addition to other relevant factors. Matter of Michael B. v Latasha T.-M., 2018 NY Slip Op 07929, First Dept 11-20-18

FAMILY LAW (RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/CUSTODY (FAMILY LAW, RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/RELOCATION (FAMILY LAW, CUSTODY, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))

,

PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT).

The First Department determined the production of certain of the condominium’s books and records was properly requested by petitioners and the subpoenaed parties’ legal expenses in resisting petitioners’ subpoenas were properly paid by the condominium board:

In item (j), petitioners seek “all correspondence with . . . NY Urban [or its principal] from 2011 to the present.” This body of correspondence is relevant and necessary to petitioners’ investigation into NY Urban’s dealings with respondents, and therefore is a proper subject of the common-law right of inspection … .

In item (g), petitioners seek “[a]ll documents and records relating to the Condominium’s settlement agreement with the Condominium sponsor.” We agree with petitioners that understanding how the Condominium reached the settlement agreement is a valid purpose. Indeed, respondents concede that petitioners are entitled to receive a copy of the final settlement agreement itself. The documents specified in item (g) following the word “including” are also reasonably relevant and necessary to the stated purpose of exploring the settlement process. We reject respondents’ conclusory assertion that some unknown number of documents are protected by the attorney-client privilege or work product doctrine.

In paying the subpoenaed parties’ legal expenses, respondents were acting within the scope of their authority and in furtherance of the legitimate purpose of resisting litigation disclosure of Condominium documents, and there is no evidence that they were acting in bad faith … . Matter of Healy v Carriage House Condominium, 2018 NY Slip Op 07970, First Dept 11-20-18

CONDOMINIUMS (PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT))/ATTORNEYS (PRODUCTION OF CONDOMINIUM RECORDS PROPERLY REQUESTED, THE BOARD’S PAYMENT OF THE SUBPOENAED PARTIES’ LEGAL EXPENSES IN RESISTING THE SUBPOENAS FOR THE RECORDS WAS PROPER (FIRST DEPT))

​

FAMILY COURT ABUSED ITS DISCRETION IN ORDERING UNSUPERVISED VISITATION WITH CHILDREN WHO HAD BEEN REMOVED FROM THE PARENTS’ CARE, THERE WAS NO EVIDENCE OF A CHANGE IN CIRCUMSTANCES SINCE THE DENIAL OF THE PARENTS’ APPLICATION TO HAVE THE CHILDREN RETURNED TO THEM (FIRST DEPT).

The First Department, reversing Family Court, determined the record did not support ordering unsupervised visitation with the parents:

Respondents continue to refuse to admit or even to acknowledge the possibility that the children, all of whom tested positive for sexually transmitted diseases (STD), were sexually abused. Even as recently as May 2018, and although they ostensibly had participated in various services and counseling, the parents continued to offer implausible explanations for the children’s medical condition. …

In November 2017, Family Court (Ta-Tanisha James, J.) denied the parents’ application pursuant to Family Court Act § 1028 to have the children returned to their care. Since then there has been no change in the circumstances upon which the denial of that application was based. The court (Frias-Colon, J.) issued the instant order without benefit of a full fact-finding hearing, apparently to avoid delay and stagnation in the proceeding. This justification is inadequate. The permanency reports and treatment updates before the court reiterated the parents’ ongoing inability to acknowledge that their children had been sexually abused and did not advocate unsupervised visitation. In view of the gravity of the allegations and the parents’ attitude toward, and role in, the events at issue, we find that the court abused its discretion in ordering unsupervised visitation on the record before it. Matter of Abass D. (Mamadou D.–Sitan D.), 2018 NY Slip Op 07968, First Dept 11-20-18

FAMILY LAW (FAMILY COURT ABUSED ITS DISCRETION IN ORDERING UNSUPERVISED VISITATION WITH CHILDREN WHO HAD BEEN REMOVED FROM THE PARENTS’ CARE, THERE WAS NO EVIDENCE OF A CHANGE IN CIRCUMSTANCES SINCE THE DENIAL OF THE PARENTS’ APPLICATION TO HAVE THE CHILDREN RETURNED TO THEM (FIRST DEPT))/VISITATION (FAMILY COURT ABUSED ITS DISCRETION IN ORDERING UNSUPERVISED VISITATION WITH CHILDREN WHO HAD BEEN REMOVED FROM THE PARENTS’ CARE, THERE WAS NO EVIDENCE OF A CHANGE IN CIRCUMSTANCES SINCE THE DENIAL OF THE PARENTS’ APPLICATION TO HAVE THE CHILDREN RETURNED TO THEM (FIRST DEPT))

,

IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT).

The First Department determined plaintiff had raised a question of fact about whether it had standing to bring this foreclosure action. The court noted that it is not necessary to have possession of the mortgage, as opposed to the note, at the time the action is commenced. A question of fact about possession of the note was raised by evidence admissible pursuant to the business records exception to the hearsay rule:

“[T]o have standing, it is not necessary to have possession of the mortgage at the time the action is commenced . . . . [T]he note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law” … . Plaintiff raised a question of fact as to its possession of the note prior to commencement of the action through the affidavit of Anthony D’Addona, who averred that he reviewed the books and records of plaintiff, kept in the ordinary course of business, and that plaintiff was the holder of the note and mortgage. This affidavit was sworn to on September 28, 2015, prior to commencement of this action. “It is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” … . DLJ Mtge. Capital v Mahadeo, 2018 NY Slip Op 07963, First Dept 11-20-18

FORECLOSURE (IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))/STANDING (FORECLOSURE, IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))/BUSINESS RECORDS (FORECLOSURE, IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))/HEARSAY (BUSINESS RECORDS, FORECLOSURE, (IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))

, ,

FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT). ​

The First Department, reversing Family Court, determined that Family Court did not have enough evidence before it to justify denying mother’s petition to modify custody. Family Court relied upon a hearsay letter from the NYS Office of Children and Family Services Child Abuse and Maltreatment Register to the effect that certain allegations against the father were unfounded or unsubstantiated:

First, the Family Court improperly denied the mother an opportunity to respond to the “unfounded” letter, which was hearsay. Moreover, although the father apparently had it in his possession for approximately two months, he did not provide it to her until the September 20 court appearance.

Second, * * * even if the “unsubstantiated” letter referred to the report made by the older child’s school social worker, that letter did not disprove the mother’s uncontroverted assertion that, both before and after that report was made, the children had expressed fear of and a desire not to visit with the father. …

Finally, to the extent that Family Court was making a determination that the parties’ child’s fear of his father was unfounded based on the “unsubstantiated” letter, and that modification was therefore not in the child’s best interests, this was error. Since this was the parties’ first appearance before this judge, the court did not have sufficient information about the parties and their child to make a comprehensive and independent determination about the child’s best interests … . Matter of Juliette S. v Tykym S., 2018 NY Slip Op 07960, First Dept 11-20-18

FAMILY LAW (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/CUSTODY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/ABUSE (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/HEARSAY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))

,

SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT).

The First Department determined Supreme Court properly suppressed evidence seized at the time of the illegal arrest, as well as the subsequent lineup identification:

… [A]t the time of the gunpoint seizure of the two defendants, the police had an anonymous tip that an undescribed suspect or suspects had burglarized an unspecified apartment on the sixth floor of a building, they spoke to building residents who reported noise on that floor, and they saw defendants leaving an apartment on that floor carrying undescribed bags. The totality of this information failed to provide reasonable suspicion to support an immediate forcible seizure without any inquiry. The police learned additional information, but only after the unlawful seizure.

Therefore, the court properly suppressed all physical evidence as fruit of the illegality. Furthermore, the court also granted suppression, independently of the initial illegality, because the witness’s recollection about the subsequent search of the contents of the bags, and about the recovery of gloves from the hallway floor, was so limited that the People did not meet their initial burden of coming forward with credible evidence to establish either a search of the bags incident to a lawful arrest or the abandonment of the gloves … .

The record also supports the court’s determination to suppress an officer’s lineup identification of [defendant] Salkey, who had fled the scene, as the unattenuated fruit of the unlawful stop and frisk … . The vague testimony provided no explanation of how Salkey came to be placed in a lineup, and no basis for finding attenuation from the initial illegality. People v Brown, 2018 NY Slip Op 07956, First Dept 11-20-18

CRIMINAL LAW (EVIDENCE, SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/SUPPRESSION  (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/LINEUPS (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/IDENTIFICATION (LINEUPS, (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))

,

VOLUNTARY PAYMENT OF CERTAIN CHARGES ASSESSED IN CONNECTION WITH REFINANCING MULTI-MILLION DOLLAR LOANS WARRANTED DISMISSAL OF THE COMPLAINT WHICH ALLEGED THE CHARGES WERE UNENFORCEABLE PENALTIES AND WERE PAID UNDER DURESS (FIRST SEPT). ​

The First Department, in a full-fledged opinion by Justice Mazzarelli, affirmed the dismissal of a complaint alleging certain payments made in connection with refinancing multi-million dollar loans were unenforceable penalties and were paid under duress. The opinion is too detailed to fairly summarize here. The central issue was whether the voluntary payment of the charges in question without protest, i.e., the voluntary payment doctrine, warranted dismissal of the complaint. The issues were described as follows:

The relative sophistication of the parties is not a factor to be considered in assessing a claim of economic duress … . Economic duress exists where a party is compelled to agree to terms set by another party because of a wrongful threat by the other party that prevents it from exercising its free will. Accordingly, our analysis consists of two prongs: first, whether Blackrock’s [defendant’s] decision to demand the late charge and extra interest payment was lawful, that is, based on rights enumerated in the agreement; and second, if it was not, whether the demand placed plaintiff in a position such that it had no other choice but to accede. With respect to the first prong, Blackrock [argues] that, because the mezzanine loan agreement is part of the record, we can decide, even at this procedural posture, that, as a matter of law, the charges were not wrongful. … Defendant argues that … the agreement plainly establishes that it had the right to make the demand it did. Plaintiff, in contrast, asserts that the late charge provision is, at the very least, ambiguous with respect to how Blackrock was to calculate the charge, and that, even if the calculation was correct, it constitutes an unenforceable penalty. Beltway 7 & Props., Ltd. v Blackrock Realty Advisers, Inc., 2018 NY Slip Op 07844, First Dept 11-15-18

DEBTOR-CREDITOR (VOLUNTARY PAYMENT OF CERTAIN CHARGES ASSESSED IN CONNECTION WITH REFINANCING MULTI-MILLION DOLLAR LOANS WARRANTED DISMISSAL OF THE COMPLAINT WHICH ALLEGED THE CHARGES WERE UNENFORCEABLE PENALTIES AND WERE PAID UNDER DURESS (FIRST SEPT))/VOLUNTARY PAYMENT DOCTRINE (DEBTOR-CREDITOR, CONTRACT LAW, (VOLUNTARY PAYMENT OF CERTAIN CHARGES ASSESSED IN CONNECTION WITH REFINANCING MULTI-MILLION DOLLAR LOANS WARRANTED DISMISSAL OF THE COMPLAINT WHICH ALLEGED THE CHARGES WERE UNENFORCEABLE PENALTIES AND WERE PAID UNDER DURESS (FIRST SEPT))/CONTRACT LAW (DEBTOR-CREDITOR, VOLUNTARY PAYMENT OF CERTAIN CHARGES ASSESSED IN CONNECTION WITH REFINANCING MULTI-MILLION DOLLAR LOANS WARRANTED DISMISSAL OF THE COMPLAINT WHICH ALLEGED THE CHARGES WERE UNENFORCEABLE PENALTIES AND WERE PAID UNDER DURESS (FIRST SEPT))

, ,

MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION NOT GRANTED (FIRST DEPT).

The First Department determined the criteria for prior restraint of speech were not met in this action to impose a preliminary injunction and temporary restraining order prohibiting the publishing of accusations against plaintiff and offensive images on defendants’ website:

Plaintiff, a law professor, sat on the appellate panel of the Financial Industry Regulatory Authority, Inc. (FINRA) that affirmed the lifetime ban imposed on two stockbrokers, nonparties Talman Harris and William Scholander. Defendants allegedly control a website known as TheBlot, a tabloid-style platform that has published a substantial quantity of material attacking FINRA’s ban of Harris and Scholander and the FINRA personnel, including plaintiff, who were involved in adjudicating that case. The attacks on plaintiff have included — in addition to name-calling, ridicule and various scurrilous accusations — juxtapositions of plaintiff’s likeness to graphic images of the lynching of African Americans, and statements that the banning of Harris, who is African American, constituted a “lynching.”

In this action, plaintiff, who is also African American, seeks, as here relevant, an injunction against the posting on TheBlot of material attacking or libeling him. In this regard, he argues that the lynching images posted alongside photographs of him on TheBlot should be understood as a threat of violence against himself. …

… [T]he preliminary injunction can be affirmed only if it enjoins a “true threat” against plaintiff … . We find, however, that the speech at issue, as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence against plaintiff. Rather, the lynching imagery at issue was plainly intended to draw a grotesque analogy between lynching and FINRA’s banning of Harris, who is an African American (and is identified as such in the posts) … . While this analogy is incendiary and highly inappropriate, plaintiff has not established that any reasonable viewer would have understood the posts as threatening or calling for violence against him. Moreover, even if the posts could reasonably be construed as advocating unlawful conduct, plaintiff has not established that any “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” … . Brummer v Wey, 2018 NY Slip Op 07843, First Dept 11-15-18

DEFAMATION (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/CIVIL PROCEDURE (DEFAMATION, PRELIMINARY INJUNCTION, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/CONSTITUTIONAL LAW (FREE SPEECH, PRIOR RESTRAINT, MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/FREE SPEECH (PRIOR RESTRAINT, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/PRIOR RESTRAINT (FREE SPEECH, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))

DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT).

The First Department, remanding the matter for a hearing in Family Court, noted that the final custody order did not make any provision for visitation:

… [T]he final custody order did not make any provision for visitation, and the father’s pro se motion explicitly sought visitation with the child. Family Court implicitly denied this request without providing any rationale. Visitation is a joint right of the child and noncustodial parent and, absent “exceptional circumstances,” it “follows almost as a matter of course,” and is presumed to be in the child’s best interest … . The record of the custody hearing established that the father had regular unsupervised and overnight visitation with the child throughout the prolonged custody proceedings, although there were some late pickups and missed visits in the months before the custody order was issued. We note the child’s attorney represents that the child strongly wishes to resume visits with the father … . Matter of Jolanda K. v Damian B., 2018 NY Slip Op 07675, First Dept 11-13-18

FAMILY LAW (VISITATION, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))/VISITATION (FAMILY LAW, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))

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