In reversing the motion court’s grant of summary judgment to the plaintiff in an unfair competition action, the Fourth Department determined that conclusory allegations of customer confusion or mistake in plaintiff’s affidavit were not sufficient, and the exhibits attached to the affidavit to demonstrate customer confusion were not admissible under the business records exception to the hearsay rule (insufficient foundation). KG2, LLC … v Weller…, CA 12-01225, 338, 4th Dept. 4-26-13
Plaintiff was injured when he stepped from a ladder onto a hose and grain dust. The Fourth Department determined Supreme Court erred when it denied summary judgment to the defendant in a Labor Law 240 (1) action because “plaintiff’s injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance…”. Smith v E E Austin & Son, Inc, CA 12-01554, 266, 4th Dept, 4-26-13
The Fourth Department explained the criteria for review of an arbitrator’s award (which involved the writing of a collective bargaining agreement) as follows:
Respondents failed to meet their “heavy burden of demonstrating that the arbitrator[s’] award is . . . totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the role of the arbitration panel is to “write collective bargaining agreements for the parties . . . , [i]t follows that such awards, on judicial review, are to be measured according to whether they are rational or arbitrary and capricious” … . “[I]t need only appear from the decision of the arbitrators that the criteria specified in the statute[, i.e., the Taylor Law,] were ‘considered’ in good faith and that the resulting award has a ‘plausible basis’ ” … . We conclude that the decision of the arbitrators meets that standard here. Matter of Arbitration …, CA 12-02127, 377, 4th Dept, 4-26-13
In upholding Family Court’s denial of visitation to the mother, the Fourth Department noted: “The court erred, however, in directing the mother to engage in mental health counseling as a condition of visitation and in delegating its authority to the children’s counselor to determine when a resumption of visitation would be appropriate … .” Matter of Roskwitalski, v Fleming, CAF 12-01090, 370, 4th Dept, 4-26-13
In reversing Family Court and dismissing a neglect petition against the father, the Fourth Department determined the hearsay evidence presented against the father was inadmissible:
At the fact-finding hearing…, “only competent, material and relevant evidence may be admitted” (§ 1046 [b] [iii]). Here, “[t]he evidence offered in support of the petition against the father consisted almost entirely of out-of-court statements made by the mother to a police officer and caseworker[s] concerning a domestic dispute” …. Those statements were not admissible against the father in the absence of a showing that they came within a statutory or common-law exception to the hearsay rule … Contrary to the statement of Supreme Court, we conclude that the hearsay statements were not admissible “under article 10” of the Family Court Act (see generally § 1046 [a]). Matter of Nicholas C, CAF 11-01532, 305, 4th Dept, 4-26-13
The Fourth Department determined that a father whose parental rights had been terminated had standing to seek modification or vacatur of a ten-year-old order of protection. The Fourth Department wrote:
Pursuant to Family Court Act § 656, the court may issue an order of protection in conjunction with any other order issued pursuant to article 6, i.e., an order terminating parental rights. We conclude that the order terminating the father’s parental rights is separate and distinct from the order of protection entered in conjunction with that termination order. Thus, the father has standing to challenge the validity of that separate order of protection. Matter of Anna B …, CAF 12-00562, 303, 4th Dept, 4-26-13
In reversing the dismissal of an incarcerated father’s petition for visitation with his nine-year-old child, the Fourth Department wrote:
Here, we conclude that “the record is not sufficient to determine whether visitation [with the father] would be detrimental to [the child’s] welfare” … Additionally, neither the mother nor the [attorney for the child] presented any evidence rebutting the presumption that visitation with the father is in the child’s best interests, and the record does not otherwise contain any evidence rebutting that presumption … . Matter of Brown v Divelbliss, CAF 12-00555, 234, 4th Dept, 4-26-13
The Fourth Department affirmed Family Court’s ruling that the father had demonstrated a change of circumstances warranting the change of custody for one of two children based upon the mother’s strained relationship with that one child:
Here, the parties vary only in their ability “to provide for the child’s emotional and intellectual development” …, and the court implicitly concluded that the mother was the less fit parent with respect to that factor …. The court determined that it was in Kaitlyn’s best interests to reside with the father because of the stress caused by the mother’s interactions with her, but that it was in Danielle’s best interests to continue residing with the mother because she had learned to cope with her mother’s personality. “Although the separation of siblings is unfortunate” …, here the children have different needs. Indeed, this “is one of those rare cases where the breakdown in communication between the parent and child that would require a change of custody is ‘applicable only as to the best interests of one of [two] children’ ” …. Matter of O’Connell, v O’Connell, CAF 12=01649, 232, 4th Dept, 4-26-13
The Fourth Department determined the trial court erred in failing to equitably distribute all or portions of an investment account, a 403-b deferred compensation account and preretirement death benefits. In addition the Fourth Department determined the wife was entitled to a portion of her husband’s enhanced earnings from his master’s degree. The underlying principles and authority for the wife’s entitlement to these assets and earnings are described in the decision. Lauzonis v Lauzonis, CA 12-00188, 209, 4th Dept, 4-26-13
In affirming Family Court’s determination the father’s consent to adoption was not required, the Fourth Department explained the analytical criteria:
“[T]here are two steps in determining whether the biological father’s consent may be dispensed with in a proceeding seeking approval of the adoption of his child[ren]” … “Using the guidelines set forth in Domestic Relations Law § 111 (1) (d), [Family C]ourt must first decide whether the father has demonstrated a substantial relationship with his child[ren] conferring [on him] the right to consent” to the adoption ….“Only after the [biological] father establishes his right of consent to the adoption . . . does the court proceed to determine [pursuant to section 111 (2) (a)] whether he has forfeited that right by evincing ‘an intent to forego his . . . parental . . . rights and obligations as manifested by his . . . failure for a period of six months to visit the child[ren] and communicate with the child[ren] or person having legal custody of the child[ren], although able to do so’ ” …. Matter of Adoption…, CAF 12-00393, 33, 4th Dept, 4-26-13
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