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THE MAJORITY NOTED THAT A DECISION IS NOT AN APPEALABLE PAPER BUT HELD THE DECISION HERE IN THIS DIVORCE CASE MET THE ESSENTIAL REQUIREMENTS OF AN ORDER AND WAS THEREFORE APPEALABLE; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined that, although a decision is not an appealable paper, the decision in this divorce action was close enough to an order to support an appeal. The dissent disagreed:

As a preliminary matter, although not raised by the parties and although “[n]o appeal lies from a mere decision” (… see generally CPLR 5501 [c]; 5512 [a]), we conclude that the paper appealed from meets the essential requirements of an order, and we therefore treat it as such … .

From the dissent:

In 1987, this Court held that “[n]o appeal lies from a mere decision” (Kuhn v Kuhn, 129 AD2d 967, 967 [4th Dept 1987]). In reaching that conclusion, we relied on, inter alia, CPLR 5512 (a), titled “appealable paper,” which provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” Until today, we have routinely followed that settled principle … . * * *

Here, the record includes a decision that is denominated only as a decision and has no ordering paragraphs and, in his notice of appeal, plaintiff explicitly appeals “from the Decision” (emphasis added). My colleagues in the majority believe that the decision is an appealable paper because it meets “the essential requirements of an order.” To support that proposition, the majority relies on Matter of Louka v Shehatou (67 AD3d 1476 [4th Dept 2009]), wherein this Court determined that a letter would be treated as an order inasmuch as “the Referee filed the letter with the Family Court Clerk and . . . the letter resolved the motion and advised the father that he had a right to appeal” (id. at 1476). Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. Furthermore, I submit that almost all written decisions at least attempt to resolve the issues presented by the parties and many of those decisions are also filed. Nicol v Nicol, 2020 NY Slip Op 00740, Fourth Dept 1-31-20

 

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STATUTE CRIMINALIZING THE POSSESSION OF AN UNLICENSED FIREARM DOES NOT VIOLATE THE SECOND AMENDMENT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, determined that the statute prohibiting possession of an unlicensed firearm in the home does not violate the Second Amendment:

… [D]efendant contends that New York may not constitutionally impose any criminal sanction whatsoever on the unlicensed possession of a handgun in the home. * * *

… [I]t is beyond dispute that “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” … . Those concerns include the state’s “substantial and legitimate interest and[,] indeed, . . . grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown” that they should not be entrusted with a dangerous instrument … . …

… [T]the criminal prohibition on the unlicensed possession of a handgun, including in the home, bears a substantial relationship to the state’s interests. “In the context of firearm regulation, the legislature is far better equipped than the judiciary’ to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying [and possessing] firearms and the manner to combat those risks” … . People v Tucker, 2020 NY Slip Op 00739, Fourth Dept 1-31-20

 

DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE; DEFENDANT MADE A LEFT TURN IN FRONT OF PLAINTIFF’S MOTORCYCLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this traffic accident case should have been granted. Defendant made a left turn in front of plaintiff’s motorcycle:

A court should be guided by the rule that, “if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” … . Here, as the court charged the jury, “defendant had a common-law duty to see that which [he] should have seen through the proper use of [his] senses” … . The evidence undisputedly established that the area of the accident did not have any obstructions and that defendant had a clear line of sight of oncoming traffic. Inasmuch as defendant admitted at trial that he never saw plaintiff or his motorcycle prior to the accident, we conclude that the finding that defendant was not negligent could not have been reached on any fair interpretation of the evidence … . Cramer v Schruefer, 2020 NY Slip Op 00728, Fourth Dept 1-31-20

 

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CORPORATE OFFICER MAY BE PERSONALLY LIABLE FOR WRONGFUL EVICTION PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 853 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the landlord’s (Huntress’s) motion for summary judgment dismissing the tenant’s (Kingsbury’s) action for wrongful eviction (RPAPL 853) should not have been granted:

The sole contention raised by Huntress in support of his motion with respect to the first cross claim was that he could not be personally liable inasmuch as he was acting as an agent of a disclosed principal. We conclude that Huntress failed to establish his entitlement to judgment as a matter of law with respect to that cross claim and, as a result, the burden never shifted to Kingsbury to raise a triable issue of fact … .

“It is well established that [a] corporate officer may be held personally liable for a tort of the corporation if he or she committed or participated in its commission, whether or not his or her acts are also by or for the corporation’ ” … . A cause of action under RPAPL 853 sounds in tort … . Here, Huntress failed to establish that he did not participate in the eviction of Kingsbury, and he therefore failed to establish as a matter of law that he cannot be held personally liable if the eviction violated RPAPL 853 … . Canandaigua Natl. Bank & Trust Co. v Acquest S. Park, LLC, 2019 NY Slip Op 09130, Fourth Dept 12-20-19

 

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FAMILY COURT EXCEEDED ITS JURISDICTION WHEN IT SUSPENDED MAINTENANCE PAYMENTS; THE PAYMENTS WERE GOVERNED BY THE PARTIES’ SEPARATION AGREEMENT, AN INDEPENDENT CONTRACT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined Family Court exceeded its jurisdiction in suspending maintenance payments to mother because the maintenance was provided for in the parties’ separation agreement:

… [W]e agree with the mother and the AFC [attorney for the child] that the court exceeded its jurisdiction in suspending maintenance payments to the mother inasmuch as the parties’ separation agreement setting forth that obligation is an independent contract … . Family Court is a court of limited jurisdiction and cannot exercise powers beyond those granted to it by statute … , and “[i]t generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement”… . We therefore modify the order by vacating the tenth provision of the second ordering paragraph insofar as it relates to the suspension of maintenance payments, and we remit the matter to Family Court for a determination of the amount of any maintenance arrears … . Matter of Krier v Krier, 2019 NY Slip Op 09129, Fourth Dept 12-20-19

 

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PORTIONS OF CITY SIDEWALK ELEVATED BY TREE ROOTS AND “REPAIRED” WITH COLD PATCH; QUESTIONS OF FACT WHETHER THE ABUTTING PROPERTY OWNERS AND CITY ARE LIABLE IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined: (1) there are questions of fact concerning whether the abutting property owners are liable for this sidewalk slip and fall; (2) there are questions of fact whether the city created the dangerous condition by patching the sidewalk. Plaintiff tripped and fell in an area where the sidewalk had been elevated by tree roots:

… [T]he Charter of the City of Buffalo (Charter) § 413-50 (A) specifically imposes on “owner[s] or occupant[s] of any lands fronting or abutting on any street,” i.e., the property defendants, a duty to maintain and repair the sidewalk and provides that their failure to do so will result in liability for injuries to users of the sidewalk. Contrary to the property defendants’ contention, that duty to maintain and repair extends to damage caused by the roots of a tree owned by the City where, as here, “the local ordinance contains no exceptions to the duty imposed on abutting landowners to maintain the sidewalk, even if the allegedly dangerous condition was created by a root extending from [City] property” … . …

… [T]he evidence submitted by the property defendants in support of their motion, which was then incorporated into the City’s cross motion, raised triable issues of fact whether the City performed the “cold patch” repair to the area sometime before plaintiff’s accident and whether the condition of the sidewalk on the day of plaintiff’s accident was the same as when the “cold patch” was first applied. We thus conclude that the City failed to establish as a matter of law that it did not affirmatively create a dangerous condition or that the dangerous condition was due solely to conditions that developed over time … . Beagle v City of Buffalo, 2019 NY Slip Op 09126, Fourth Dept 12-20-19

 

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VENUE FOR THIS HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION SEEKING TO ANNUL A TOWN LOCAL LAW WHICH CREATED A WILDLIFE OVERLAY DISTRICT IS THE COUNTY IN WHICH THE TOWN IS LOCATED PURSUANT TO TOWN LAW SECTION 66 (1) (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeJoseph, determined Supreme Court properly found that Orleans County, not Niagara County, was the correct venue for this hybrid Article 78/declaratory judgment action seeking to invalidate a Town of Shelby Local Law creating a wildlife refuge overlay district, and further seeking to annul the Town Board’s negative declaration under the State Environmental Quality Review Act (SEQRA). The legal analysis is too detailed to be fully summarized here:

The primary issue raised on this appeal involves the interplay between three statutory provisions concerning venue, i.e., CPLR 504 (2), CPLR 506 (b), and Town Law § 66 (1) and, ultimately, whether Supreme Court properly granted the motion of respondents-defendants (respondents) to transfer venue of this hybrid CPLR article 78 proceeding and declaratory judgment action from Niagara County to Orleans County. We conclude that the court properly transferred venue pursuant to Town Law § 66 (1). …

Town Law § 66 (1) provides that “[t]he place of trial of all actions and proceedings against a town or any of its officers or boards shall be the county in which the town is situated.”

We conclude that Town Law § 66 applies and, as such, the proper venue in the instant action is Orleans County rather than Niagara County. Matter of Zelazny Family Enters., LLC v Town of Shelby, 2019 NY Slip Op 09124, Fourth Dept 12-20-19

 

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AN ORDER ADDRESSING WHETHER DOCUMENTS SOUGHT IN DISCOVERY ARE PRIVILEGED IS APPEALABLE AS OF RIGHT (FOURTH DEPT).

The Fourth Department, reversing (modifying) an order concerning whether documents sought in discovery were privileged, noted that the order was appealable as of right:

During discovery, a dispute arose over allegedly privileged documents that plaintiff withheld or redacted. In its privilege logs, plaintiff asserted that many of the documents were protected from disclosure on three grounds, i.e., that they were material prepared in anticipation of litigation (see CPLR 3101 [d] [2]), attorney work product (see CPLR 3101 [c]), or protected by the attorney-client privilege (see CPLR 4503 [1]). Plaintiff asserted that a few documents were not discoverable on the sole basis that they were materials prepared in anticipation of litigation. Campany and the Travelers defendants separately moved, inter alia, to compel plaintiff’s disclosure of various documents or, in the alternative, for an in camera review of the documents. Plaintiff moved for, among other things, a protective order, contending that all communications involving attorneys or litigation experts on and after October 24, 2016 were presumptively privileged because the Travelers defendants and plaintiff contemplated litigation at that time. Supreme Court denied the Travelers defendants’ motion, denied in part Campany’s motion, and granted plaintiff’s motion by, as relevant here, ordering that all documents of plaintiff created on and after October 24, 2016 were not discoverable because they were material prepared in anticipation of litigation. Campany and the Travelers defendants appeal.

Initially, we reject plaintiff’s contention that the order is not appealable. CPLR 5701 (a) (2) (v) provides that, with limited exceptions, which are not applicable here, an appeal may be taken to this Court as of right from an order where the motion it decided was made upon notice and it “affects a substantial right.” An order granting a protective order and precluding discovery of numerous documents affects a substantial right of Campany and the Travelers defendants, and the order is thus appealable as of right … . John Mezzalingua Assoc., LLC v Travelers Indem. Co., 2019 NY Slip Op 09157, Fourth Dept 12-20-19

 

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SPANISH-LANGUAGE CONVICTION RECORDS FROM PUERTO RICO, WHICH WERE NOT TRANSLATED, WERE INSUFFICIENT TO PROVE DEFENDANT TO BE A SEX OFFENDER (FOURTH DEPT). ​

The Fourth Department, vacating the risk level determination, determined the proof defendant was a sex offender was insufficient. The documents relating to a conviction in Puerto Rico were in Spanish and were not translated:

We agree with defendant that, in making its determination that defendant is a sex offender, the Board erred in relying on documents in Spanish that were not accompanied by an English translation (see generally CPLR 2101 [b]). Upon defendant’s objection during the SORA hearing to the Board’s determination, no additional documents were submitted to support the Board’s determination. Thus, there is no English-translated document stating the offense of which defendant was convicted in Puerto Rico, and therefore there is no competent evidence to support the Board’s determination that defendant was convicted of a felony offense in another jurisdiction … . In addition, the purported sex offender registration form showing that defendant was required to register in Puerto Rico is entirely in Spanish, and thus there is no competent evidence to support the Board’s determination that defendant was required to register as a sex offender in Puerto Rico … . People v Ramos, 2019 NY Slip Op 09153, Fourth Dept 12-20-19

 

MOTHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILD SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for permission to relocate with the child should not have been dismissed without a hearing:

In this proceeding pursuant to Family Court Act article 6, we agree with petitioner mother that Family Court erred in summarily granting respondent father’s motion to dismiss her petition to relocate with the parties’ child to the Honeoye Falls-Lima Central School District or Livingston County. A prior custody order entered upon the consent of the parties provided that the mother and the father had joint custody of the child with primary physical residence with the mother, and restricted the mother’s residency to certain towns within Monroe County. “Generally, [d]eterminations affecting custody and visitation should be made following a full evidentiary hearing’ ” … , and we conclude that the allegations in the mother’s petition “established the need for a hearing on the issue whether [her] relocation is in the best interests of the child” … .

The mother was not required to demonstrate a change of circumstances inasmuch as she sought permission to relocate with the subject child … . Further, the mother adequately alleged in her petition that relocation was in the best interests of the child inasmuch as she alleged that the cost of housing would be lower in Livingston County, that the child’s maternal grandfather would be able to assist the mother with childcare upon her relocation allowing her to return to work, and that the relocation would not interfere with the father’s visitation schedule. The court was therefore required to determine whether the proposed relocation was in the child’s best interests by analyzing the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 739-741 [1996] …). Matter of Johnston v Dickes, 2019 NY Slip Op 09208, Fourth Dept 12-20-19

 

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