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PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT (SCPA), AN ADMINISTRATOR MAY BE SUSPENDED WITHOUT A PETITION OR ISSUANCE OF PROCESS FOR MISAPPROPRIATING ESTATE PROPERTY (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the motion to suspend the administrators of the estate should have been granted. The administrators had allowed the estate to languish for 20 years and there was evidence estate property had been misappropriated by one administrator:

Pursuant to SCPA 719, “the court may make a decree suspending . . . or revoking letters issued to a fiduciary from the court . . . without a petition or the issuance of process” where, among other things, “any of the facts provided in [SCPA] 711 are brought to the attention of the court” (SCPA 719[10] … . The circumstances set forth under SCPA 711 justifying “a decree suspending . . . or revoking those letters” include a fiduciary “having wasted or improperly applied the assets of the estate” … or having “removed property of the estate . . . without prior approval of the court” … . “The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to ‘a judicial nullification of the testator’s choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established'” … . The grounds set forth under SCPA 711 may be clearly established “by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding” … . “Thus, revoking a fiduciary’s letters . . . pursuant to SCPA 719 will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom, . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy'” … .

Here, the record contains undisputed evidence of conflict between the administrators, and evidence that the animosity between them has interfered with the expeditious administration of the decedent’s estate, which they have allowed to languish for nearly two decades … . Moreover, Menfus [one of the administrators] admitted … he executed a deed to one of the subject properties to himself, and permitted his father to live in the other property rent free. Matter of Steward, 2021 NY Slip Op 02395, Second Dept 4-21-21

 

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THE ARBITRATORS’ AWARD IN THIS RELIGIOUS DIVORCE PROCEEDING WAS NOT INVALID BECAUSE THE ARBRITRATORS DID NOT STATE THE REASONS FOR THE AWARD, AND THE AWARD WAS NOT INDEFINITE AND NONFINAL; SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award should not have been vacated. The award, issued by a rabbinical tribunal in a religious divorce proceeding, required the respondent to arrange for the religious divorce (a Get) and required petitioner to accept the religious divorce. A lump sum award and maintenance of $10,000 per month was to be held in escrow until the Get is accepted. Supreme Court held the award was indefinite or nonfinal and the arbitrators failed to state the reasons for the award:

Contrary to the conclusion of the Supreme Court, the arbitrators were not required to give reasons for their arbitration award … . Further, the arbitration award did not leave the parties unable to determine their rights and obligations, resolved the controversy before the arbitrators, and did not create a new controversy; therefore, the arbitration award was not indefinite or nonfinal for purposes of CPLR 7511 … . The respondent’s obligation to pay maintenance continued because he failed to arrange for issuance of a Get and termination of the marriage—not because the terms of the arbitration award were not definite. Matter of Rokeach v Salamon, 2021 NY Slip Op 02393, Second Dept 4-21-21

 

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FAMILY COURT’S DETERMINATION FATHER DID NOT SEXUALLY ABUSE HIS CHILD WAS NOT SUPPORTED BY THE RECORD; THE CHILD’S HEARSAY STATEMENTS WERE CORROBORATED, AND FAMILY COURT’S DECISION TO CREDIT THE TESTIMONY OF FATHER’S EXPERT OVER PETITIONER’S EXPERT WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations father sexually abused his child, Zamir, were proved by a preponderance of the evidence. The hearsay allegations of the child were corroborated by another child and case workers. Father’s expert, relied upon by Family Court, offered speculative testimony about alleged flaws in the approach taken by petitioner’s expert, but acknowledged he had not reviewed the petitioner’s expert’s testimony:

… [W]e find that the petitioner established by a preponderance of the evidence that the father neglected Zamir by sexually abusing him. The Family Court’s finding that there was no evidence presented of “age-inappropriate sexual knowledge” by Zamir is not supported by the record, since the then five-year-old child made an “up down” motion with his hands during the interviews with the petitioner’s expert to demonstrate how he was made to touch the father’s penis … . Further, the court’s finding that there was no evidence presented that the child displayed any “psychological or behavioral characteristics” indicative of having been sexually abused is not supported by the record. The petitioner’s expert testified that Zamir was “engaging” when talking about anything other than the sexual abuse, but used “less words per sentence,” without maintaining eye contact, and became “squirmy” when discussing the sexual abuse, and that “[i]t was very easy to see that he was not comfortable discussing th[at] topic.” In addition, the court’s speculation that Zamir fabricated the claims of sexual abuse because he was angry at the father for other matters is not supported by the record. Matter of Zamir F. (Ricardo B.), 2021 NY Slip Op 02391, Second Dept 4-21-21

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY OR INCREASED PARENTAL ACCESS SHOULD NOT HAVE BEEN DENIED WITHOUT AN IN CAMERA INTERVIEW OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for joint custody or an expansion of parental access should not have been denied without an in camera interview of the child:

A modification of a court-ordered custody arrangement must be based upon a showing of a change in circumstances such that the modification is required to protect the best interests of the child … . A child’s changing needs as he or she grows older can sufficiently constitute a change in circumstances … .

Here, in light of the evidence presented by the father and assertions of the attorney for the child, the Family Court should not have determined the father’s petition without conducting an in camera interview with the child. “[W]hile the express wishes of children are not controlling, ‘they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful'” … . Matter of Coleman v Lymus, 2021 NY Slip Op 02389, Second Dept 4-21-21

 

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PLAINTIFF POLICE OFFICER WAS INJURED CHANGING THE CARBON DIOXIDE CARTRIDGE FOR AN ANIMAL TRANQUILIZER GUN; THE PRODUCTS LIABILITY CAUSE OF ACTION AGAINST THE MANUFACTURER SURVIVED SUMMARY JUDGMENT; THE GENERAL MUNICIPAL LAW 205-E/LABOR LAW 27-A CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence and products liability causes of action against NASCO, the manufacturer of an animal tranquilizer gun, properly survived summary judgment, but the General Municipal Law/Labor Law action against the city and the NYPD should not have been dismissed. Plaintiff, a police officer, was injured changing the carbon dioxide cartridge for the gun:

NASCO’s expert … opined in mere conclusory fashion that the tranquilizer gun was “appropriately designed.” The affidavit did not, for example, contain any explanation of the gun’s design, or any discussion of industry standards or costs. Nor did it state whether NASCO had received complaints about any of the other tranquilizer guns it had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the gun was reasonably safe for its intended use … .

NASCO … failed to demonstrate, prima facie, that the plaintiff’s actions were the sole proximate cause of the subject accident … . Triable issues of fact existed, among other things, as to whether the plaintiff was given specific instructions by the NYPD that he failed to follow or whether he used a tool to remove the end cap. …

NASCO, which relied primarily on an instruction sheet produced by the NYPD that the plaintiff testified was never given to him, failed to meet its burden of establishing, prime facie, that the warnings provided to the NYPD were adequate, that no warnings were necessary, or that the failure to give the aforesaid warnings was not a proximate cause of the accident … .

…The City defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the General Municipal Law § 205-e cause of action as was predicated upon Labor Law § 27-a. The City defendants failed to demonstrate, prima facie, that the tranquilizer gun, which was purchased by the NYPD in 1976, was not defective due to lack of proper maintenance, as alleged by the plaintiff … . Further “[r]ecovery under General Municipal Law § 205-e ‘does not require proof of such notice as would be necessary to a claim in common-law negligence'” … .”Rather, the plaintiff must only establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant’s part” … . Morales v City of New York, 2021 NY Slip Op 02386, Second Dept 4-21-21

 

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DEFENDANT’S ALLEGATION HE DID NOT RECEIVE THE BANK’S LETTER DE-ACCELERATING THE DEBT WAS NOT SUFFICIENT TO SUPPORT HIS MOTION FOR SUMMARY JUDGMENT DISMISSING THE FORECLOSURE ACTION AS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s claim  he did not receive plaintiff-bank’s letter de-accelerating the debt (thereby stopping the running of the six-year statute of limitations) was not sufficient to warrant dismissal of the complaint as time-barred:

The filing of the summons and complaint in the 2009 action constituted a valid election by the plaintiff to accelerate the maturity of the entire mortgage debt … . This established that the mortgage debt was accelerated in February 2009, and that, without more, the applicable six-year statute of limitations had expired by the time the plaintiff commenced the instant action in March 2016 … .

In opposition, however, the plaintiff produced the January 2015 letter of de-acceleration and alleged that it had been sent to the defendant. Although the defendant claimed that he had never received the letter and had no knowledge of it, the mere denial of receipt was not sufficient to satisfy his burden on his cross motion for summary judgment of establishing that the plaintiff or its loan servicer did not properly send the notice to him … . HSBC Bank USA, N.A. v Hochstrasser, 2021 NY Slip Op 02380, Second Dept 4-21-21

 

THE EVIDENCE THAT THE PATERNAL UNCLE STRUCK THE CHILD ON THE ARM AFTER SHE MADE FUN OF AN ADULT IN THE HOUSEHOLD WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT AND DERIVATIVE NEGLECT FINDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence the child’s paternal uncle struck the child on the arm after the child had made fun of another adult in the household did not support a neglect and derivative neglect finding. (The paternal uncle denied striking the child):

While those legally responsible for the care of children “have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare” … , the use of excessive corporal punishment constitutes neglect … . The petitioner has the burden of proving neglect by a preponderance of the evidence … . Although a single incident of excessive corporal punishment may suffice to support a finding of neglect in a given case, there are instances where the record will not support such a finding, even where the use of physical force was inappropriate … . Under the circumstances presented here, we agree with the paternal uncle and the attorneys for the respective children that the Family Court erroneously found that ACS [Administration for Children’s Services]  established by a preponderance of the evidence that the paternal uncle neglected Myiasha by inflicting excessive corporal punishment upon her. ACS failed to establish that the paternal uncle’s action in inappropriately striking the child rose to the level of neglect, or that he intended to hurt Myiasha, or exhibited a pattern of excessive corporal punishment … . Moreover, there was insufficient evidence that Myiasha suffered the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect … . Matter of Myiasha K. D. (Marcus R.), 2021 NY Slip Op 02290, Second Dept 4-14-21

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE POLICE OFFICER WHO COLLIDED WITH HER CAR WAS ENGAGED IN AN EMERGENCY OPERATION AT THE TIME OF THE ACCIDENT; THEREFORE THE ORDINARY NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether defendant police officer, Breen, was in fact involved in an emergency operation at the time she collided with the car in which plaintiff was a passenger. Therefore there was a question of fact whether the ordinary negligence principles, as opposed the reckless disregard standard, applied:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence” … .

Here, the defendants established, prima facie, that a negligence standard of care was inapplicable to Breen’s conduct, through the submission of evidence establishing that Breen was responding to another officer in need of assistance when she entered the intersection against a red traffic light and collided with the plaintiff’s vehicle … . In opposition, however, the plaintiff raised triable issues of fact as to whether Breen was in fact responding to the other officer’s call at the time of the accident and, therefore, whether the negligence standard should apply … . Modica v City of New York, 2021 NY Slip Op 02287, Second Dept 4-14-21

 

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THE CHILDREN DO NOT HAVE STANDING TO PARTICIPATE IN LITIGATION REGARDING THEIR PARENTS’ PRENUPTIAL AGREEMENT; THEREFORE THE ATTORNEY FOR THE CHILD DID NOT HAVE THE AUTHORITY TO MAKE A MOTION CONCERNING THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the children did not have standing to participate in the litigation of financial matters of their parents’ divorce, including the litigation concerning whether the prenuptial agreement should be set aside. Therefore the attorney for the child (AFC) did not have the authority to make a motion regarding the prenuptial agreement:

Although children have certain rights with respect to issues of child support, custody, and visitation in matrimonial actions … , children do not have a right to participate in the litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.

Moreover, while “children’s attorneys are expected to participate fully in proceedings in which they are appointed” … , such participation is limited to matters in which the children are the “subject of the proceeding” (Family Court Act § 249; see Judiciary Law § 35[7]). Given that children are not bound by agreements entered into by their parents , they are not the “subject” of proceedings to determine the validity of their parents’ prenuptial agreement related to maintenance and equitable distribution (Family Court Act § 249). Mahadeo v Mahadeo, 2021 NY Slip Op 02286, Second Dept 4-14-21

 

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PLAINTIFF IN THIS DIVORCE ACTION WAS ENTITLED TO A NEW HEARING ON WHETHER THE PRENUPTIAL AGREEMENT SHOULD BE SET ASIDE; THE COURT NOTED THAT A CONTRACT WHICH MAY NOT BE UNCONSCIONABLE WHEN ENTERED MAY BECOME UNCONSCIONABLE WHEN FINAL JUDGMENT IS ENTERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to a new hearing on whether the prenuptial agreement was unconscionable. In the agreement, each party waived maintenance, equitable distribution and attorney’s fees. At the time the agreement was entered plaintiff was making $75 to $80,000 per year. At the time of the divorce plaintiff alleged she had no assets and needed public assistance:

“An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse”… . “An agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered” … .

Here, the plaintiff submitted evidence with her motion papers in support of her argument that the prenuptial agreement should be set aside as a matter of public policy since, at the time of her motion, she was unemployed, had become reliant on public assistance for herself and her children, and had no financial resources … . Despite the plaintiff having raised this argument, the Supreme Court failed to address the plaintiff’s contention that the enforcement of the agreement would result in the risk of her becoming a public charge … . Mahadeo v Mahadeo, 2021 NY Slip Op 02285, Second Dept 4-14-21

 

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