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TENANT ABUTTING SIDEWALK DID NOT DEMONSTRATE THAT IT DID NOT CLEAR ICE AND SNOW FROM THE SIDEWALK AND THAT IT DID NOT EXACERBATE THE DANGEROUS CONDITION, MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant’s (CVS’s) motion for summary judgment in this sidewalk slip and fall case was properly denied. CVS did not demonstrate that it made no efforts to clear the sidewalk and that it did not exacerbate the dangerous condition:

CVS failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the second third-party complaint and all cross claims asserted against it. CVS failed to make a prima facie showing that it made no efforts to clear snow and ice from the sidewalk on which the plaintiff fell prior to the accident. Further, CVS failed to make a prima facie showing that any snow and ice removal efforts undertaken by it or by persons on its behalf did not exacerbate the hazardous condition which allegedly contributed to the plaintiff’s accident … . Hurk-McLeod v Slope Park Assoc., LLC, 2018 NY Slip Op 01047, Second Dept 2-14-18

NEGLIGENCE (SLIP AND FALL, TENANT ABUTTING SIDEWALK DID NOT DEMONSTRATE THAT IT DID NOT CLEAR ICE AND SNOW FROM THE SIDEWALK AND THAT IT DID NOT EXACERBATE THE DANGEROUS CONDITION, MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, TENANT ABUTTING SIDEWALK DID NOT DEMONSTRATE THAT IT DID NOT CLEAR ICE AND SNOW FROM THE SIDEWALK AND THAT IT DID NOT EXACERBATE THE DANGEROUS CONDITION, MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, TENANT ABUTTING SIDEWALK DID NOT DEMONSTRATE THAT IT DID NOT CLEAR ICE AND SNOW FROM THE SIDEWALK AND THAT IT DID NOT EXACERBATE THE DANGEROUS CONDITION, MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

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A DIAGNOSIS OF PARAPHILIA NOS (NONCONSENT) IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT).

The Second Department determined that Supreme Court properly found, after a Frye hearing ordered by the Second Department and held after the trial, the diagnosis of paraphilia NOS (nonconsent) is not generally accepted in the psychiatric and psychological communities. The evidence should not have been admitted at the sex offender’s civil commitment trial:

The evidence at the Frye hearing showed that there was no clear definition or criteria for the diagnosis, the diagnosis could not be reliably distinguished from other motivations for rape, the articles offered in support of the diagnosis did not reflect a wide, significant, or well-rounded body of research supporting the validity of the diagnosis, and the diagnosis was repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM) or in the DSM appendix … . Thus, evidence of the paraphilia NOS (nonconsent) diagnosis should not have been admitted at trial. Since the error was not harmless, the matter must be remitted to the Supreme Court, Queens County, for a new trial on the issue of mental abnormality, excluding evidence of the paraphilia NOS (nonconsent) diagnosis, and, if necessary, a new dispositional hearing. Matter of State of New York v Richard S., 2018 NY Slip Op 01072, Second Dept 2-14-18

MENTAL HYGIENE LAW (SEX OFFENDER, CIVIL COMMITMENT, A DIAGNOSIS OF PARAPHIILIA NOS (NONCONSENT) S NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))/SEX OFFENDERS (CIVIL COMMITMENT,  A DIAGNOSIS OF PARAPHILIA NOS (NONCONSENT) IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))/CIVIL COMMITMENT (SEX OFFENDERS, MENTAL HYGIENE LAW, A DIAGNOSIS OF PARAPHILIA NOS (NONCONSENT) IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))UNSPECIFIED PARAPHILIC DISORDER (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, A DIAGNOSIS OF PARAPHILIA NOS (NONCONSENT) IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))

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A DIAGNOSIS OF UNSPECIFIED PARAPHILIC DISORDER IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the Frye hearing did not demonstrate that diagnosis of unspecified paraphilic disorder has achieved general acceptance in the psychiatric and psychological communities. Therefore the expert evidence on the disorder should not have been admitted at the trial to determine whether appellant sex offender should be subject to civil commitment:

At the Frye hearing, Dr. David Thornton and Dr. Kostas Katsavdakis, who testified for the State, and Dr. Joe Scroppo, who testified on behalf of the appellant, agreed that the forensic use of the diagnosis of unspecified paraphilic disorder, which was added to the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM-5) in 2013, was problematic and controversial, since there was no clear definition or criteria for the proposed disorder. Moreover, all of the experts testified that there was no research demonstrating the reliability of the unspecified paraphilic disorder diagnosis after its introduction in the DSM-5 in 2013. Notably, the experts were not aware of any published research, clinical trials, or field studies regarding unspecified paraphilic disorder.

Accordingly, we conclude that the State failed to establish that the diagnosis of unspecified paraphilic disorder has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible, and as such, that diagnosis should not have been admitted at the appellant’s trial. Since the admission of this testimony was not harmless, we remit the matter to the Supreme Court, Nassau County, for a new trial on the issue of mental abnormality, excluding evidence of the unspecified paraphilic disorder diagnosis, and, if necessary, a new dispositional hearing. Matter of State of New York v Hilton C., 2018 NY Slip Op 01071, Second Dept 2-14-18

MENTAL HYGIENE LAW (SEX OFFENDER, CIVIL COMMITMENT, A DIAGNOSIS OF UNSPECIFIED PARAPHILIC DISORDER IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))/SEX OFFENDERS (CIVIL COMMITMENT,  A DIAGNOSIS OF UNSPECIFIED PARAPHILIC DISORDER IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))/CIVIL COMMITMENT (SEX OFFENDERS, MENTAL HYGIENE LAW, A DIAGNOSIS OF UNSPECIFIED PARAPHILIC DISORDER IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))UNSPECIFIED PARAPHILIC DISORDER (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, A DIAGNOSIS OF UNSPECIFIED PARAPHILIC DISORDER IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT))

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INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT).

The Second Department determined the parents’ inability to agree on the child’s religious training, together with the father’s threat to take to child to Morocco if she were not raised as a “true Muslim,” warranted awarding sole custody to mother:

” In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child'”… . Here, the parties’ inability to agree on the child’s religious training, which was an issue that had not been addressed in the parties’ July 2009 stipulation of settlement, constituted a change in circumstances. The change in the child’s relationship with the father based on the child’s fear of his displeasure if she were not a “true Muslim,” and her belief that he threatened to abscond with her to Morocco, also contributed to the change in circumstances warranting modification … . …

The evidence established that the only issue on which the parents disagreed was the religion in which the child should be raised and to what degree she should be expected to observe the tenets of each parent’s religion. The award to the mother of sole decision-making authority with respect to religion is in the child’s best interests, and the award of parenting time to each parent on his or her respective religious holidays will continue to allow the child to be exposed to both parents’ religions … . Matter of Baalla v Baalla, 2018 NY Slip Op 01050, Second Dept 2-14-18

FAMILY LAW (CUSTODY, INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT))/CUSTODY (FAMILY LAW, INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT))/RELIGION (FAMILY LAW, CUSTODY, INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT))

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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the findings to enable the child to petition for special immigrant juvenile state (SIJS):

… [W]here, as here, the Family Court’s credibility determination is not supported by the record, this Court is free to make its own credibility assessments and overturn the determination of the hearing court… . Based upon our independent factual review, we conclude that the record supports a finding that reunification of the child with his mother is not a viable option based upon parental neglect. The record reflects that the mother failed to meet the educational needs of the child … . The child testified that, although he was prevented from attending school by gang members who beat him while walking to school, the mother did not arrange for transportation, which was within her financial means, but instead, told him to stay home. Additionally, the child was expelled from one school due to excessive tardiness, and he failed the seventh grade … . Further, the mother did not provide adequate supervision, often leaving the then eight-year-old child home alone at night in the neighborhood where he had encountered the gang violence … . Matter of Dennis X. G. D. V., 2018 NY Slip Op 01073, Second Dept 2-14-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS), FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT))

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SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the in-court stipulation of settlement in a divorce action should not have been set aside. Neither party requested that the stipulation be set aside:

The defendant contends that the Supreme Court erred in, sua sponte, setting aside the stipulation. We agree. Neither the decedent nor the defendant requested that the court set aside the stipulation … . Moreover, stipulations of settlement are favored by the courts and not lightly cast aside. “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” … . Here, the court did not conclude that any of these grounds were present. Estate of Michael Reid v Reid, 2018 NY Slip Op 01044, Second Dept 2-14-18

FAMILY LAW (STIPULATION OF SETTLEMENT, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/STIPULATIONS (FAMILY LAW, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/CIVIL PROCEDURE (SUA SPONTE, FAMILY LAW, STIPULATIONS, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/SUA SPONTE (STIPULATIONS, FAMILIY LAW, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))

AMBIGUITY IN THE STIPULATION OF SETTLEMENT WAS RESOLVED BY LANGUAGE IN THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO), THE LANGUAGE IN THE QDRO SHOULD HAVE CONTROLLED THE INTERPRETATION OF THE STIPULATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that an ambiguity in the stipulation of settlement involving the supplemental employee retirement plan (SERP) should have been resolved by the language of the qualified domestic relations order (QDRO):

Courts must interpret matrimonial stipulations of settlement using the standards of contract interpretation … . A QDRO can only convey rights agreed upon by the parties in their underlying stipulation of settlement… . Courts “cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation” … . Here, however, the parties assented to a reformation of their stipulation of settlement in a manner that resolves the ambiguity of its SERP [supplemental employee retirement plan] language by mutually consenting to the language of the QDRO that was entered by the Supreme Court … . The QDRO states that the parties “consent[ed] to the submission of th[e] order,” and it was signed by the attorneys representing both parties. The QDRO directed the use of a standard Majauskas formula for dividing, inter alia, the SERP. While the terms of a QDRO must ordinarily yield to the terms of an underlying matrimonial stipulation of settlement or judgment … , here, the circumstances warrant otherwise as the QDRO resolved an ambiguity in the language of the underlying stipulation, and further, was submitted for entry upon the consent of both parties. * * *

Accordingly, the Supreme Court should have interpreted the stipulation of settlement in light of the 2002 QDRO, which granted to the plaintiff a one-half share, as per the formula set forth therein, in the subject 401(k) account and SERP as of the date of the retirement of the defendant … . Palaia v Palaia, 2018 NY Slip Op 01076, Second Dept 2-14-18

FAMILY LAW (AMBIGUITY IN THE STIPULATION OF SETTLEMENT WAS RESOLVED BY LANGUAGE IN THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO), THE LANGUAGE IN THE QUDRO SHOULD HAVE CONTROLLED THE INTERPRETATION OF THE STIPULATION (SECOND DEPT))/STIPULATION OF SETTLEMENT (FAMILY LAW, AMBIGUITY IN THE STIPULATION OF SETTLEMENT WAS RESOLVED BY LANGUAGE IN THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO), THE LANGUAGE IN THE QUDRO SHOULD HAVE CONTROLLED THE INTERPRETATION OF THE STIPULATION (SECOND DEPT))/SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN (SERP) (FAMILY LAW, AMBIGUITY IN THE STIPULATION OF SETTLEMENT WAS RESOLVED BY LANGUAGE IN THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO), THE LANGUAGE IN THE QUDRO SHOULD HAVE CONTROLLED THE INTERPRETATION OF THE STIPULATION (SECOND DEPT))/QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) (FAMILY LAW, AMBIGUITY IN THE STIPULATION OF SETTLEMENT WAS RESOLVED BY LANGUAGE IN THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO), THE LANGUAGE IN THE QUDRO SHOULD HAVE CONTROLLED THE INTERPRETATION OF THE STIPULATION (SECOND DEPT))

NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that neglect based upon mother’s mental illness had not been demonstrated:

… [T]he petitioner failed to establish that the mother received inadequate psychiatric treatment for her mental illness, or that her alleged untreated mental illness placed the child at imminent risk of harm. The evidence demonstrated that the mother, who was homeless at the time that she became pregnant and had relapsed into using heroin just a few months earlier, managed to obtain housing at a shelter for high-risk pregnant women, sought out appropriate prenatal care which included visits with a social worker, maintained compliance with a methadone treatment program which included weekly counseling sessions, and regularly took the psychotropic medications that were being prescribed to her by a licensed psychiatrist. The evidence also indicated that the mother interacted appropriately with the child in the hospital following the child’s birth … . The petitioner failed to present competent medical evidence that the treatment the mother was receiving failed to address her mental health needs or was otherwise improper in light of her mental health history … . Matter of Bella S. (Sarah S.), 2018 NY Slip Op 01069, Second Dept 2-14-18

FAMILY LAW (NEGLECT, MENTAL ILLNESS, NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT))/NEGLECT (FAMILY LAW, MENTAL ILLNESS, NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, NEGLECT, NEGLECT STEMMING FROM MOTHER’S MENTAL ILLNESS NOT PROVEN, FAMILY COURT REVERSED (SECOND DEPT))

JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the jury should have been instructed that it could consider the actions of the complainant’s husband in this assault case. The defendant raised the justification defense. The altercation leading to the assault charge involved both the complainant and her husband:

… [A] new trial is required because the trial court erroneously declined the defendant’s request that the jury be instructed that it could consider the actions of the complainant’s husband in determining whether the defendant’s use of force was justified … . Contrary to the People’s contention, the error cannot be deemed harmless, as the evidence to establish that the defendant was not justified was not overwhelming, and the jury may have reached a different conclusion had a proper and complete justification instruction been given … . Significantly, the defendant’s case rested on finding that he was justified in responding to the actions of the complainant’s husband … . People v Lijo, 2018 NY Slip Op 01081, Second Dept 2-14-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT))/JUSTIFICATION DEFENSE ( JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED IT COULD CONSIDER THE ACTIONS OF COMPLAINANT’S HUSBAND IN DETERMINING WHETHER THE JUSTIFICATION DEFENSE APPLIED IN THIS ASSAULT CASE (SECOND DEPT))

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MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT).

The Second Department determined Supreme Court properly denied petitioner’s motion to discontinue the action which challenged the tax assessments of several lots. Supreme Court abused its discretion, however, when it, sua sponte, directed merger of several parcels into a single tax lot:

A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results … .

In this case, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend against the proceeding … , and was improperly sought to avoid the consequences of a potentially adverse determination and to obtain an improper result.

However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing that the six parcels be merged into a single tax lot. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” .. . Here, the court failed to abide by this principle. None of the parties sought merger of the parcels or similar relief, merger of all the parcels at issue into one tax lot is not supported by the record, and merger of all the parcels could be potentially prejudicial to the petitioner. Matter of Blauvelt Mini-Mall, Inc. v Town of Orangetown, 2018 NY Slip Op 01051, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/DISCONTINUANCE  (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/SUA SPONTE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/REAL PROPERTY TAX LAW (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))

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