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SURROGATE’S COURT DOES NOT HAVE THE AUTHORITY TO ABROGATE OR VACATE A FOREIGN ORDER OF ADOPTION.

The Second Department determined Surrogate’s Court did not have the authority under the Domestic Relations Law to deny recognition of, or vacate, adoption orders issued to petitioners by a Russian court. After adopting the children, petitioners learned the children had serious mental health problems which required placement in a residential psychiatric treatment facility. Petitioners then sought relief from the Russian adoption orders:

… [T]he Surrogate’s Court lacked authority under Domestic Relations Law § 111-c to deny recognition of the adoption order. Although a court may deny a petition for registration of a foreign adoption order on the ground that it does not satisfy the requirements set forth in Domestic Relations Law § 111-c(1) … , the statute, by its plain language, was not intended to function as a means to abrogate a foreign adoption or deny recognition of a foreign adoption order on the basis of fraud. …

The Surrogate’s Court similarly lacked authority under Domestic Relations Law § 114(3) to vacate the adoption order. That statute provides that, “[i]n like manner as a court of general jurisdiction exercises such powers, a judge or surrogate of a court in which the order of adoption was made may open, vacate or set aside such order of adoption for fraud, newly discovered evidence or other sufficient cause.” … The plain language of that statute only empowers a New York court to vacate its own adoption orders, and not those issued in a foreign sovereign nation … . Matter of Child A (Parent M.), 2016 NY Slip Op 08510, 2nd Dept 12-21-16

 

FAMILY LAW (SURROGATE’S COURT DOES NOT HAVE THE AUTHORITY TO ABROGATE OR VACATE A FOREIGN ORDER OF ADOPTION)/SURROGATE’S COURT (FAMILY LAW, ADOPTION, SURROGATE’S COURT DOES NOT HAVE THE AUTHORITY TO ABROGATE OR VACATE A FOREIGN ORDER OF ADOPTION)/ADOPTION (SURROGATE’S COURT DOES NOT HAVE THE AUTHORITY TO ABROGATE OR VACATE A FOREIGN ORDER OF ADOPTION)/DOMESTIC RELATIONS LAW (SURROGATE’S COURT DOES NOT HAVE THE AUTHORITY TO ABROGATE OR VACATE A FOREIGN ORDER OF ADOPTION)

CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON PROPERTY PURCHASED AND IMPROVED WITH MARITAL FUNDS BUT TITLED TO ANOTHER.

The Second Department determined a constructive trust was properly imposed on Florida property in this divorce action. The wife, who sought the constructive trust, alleged that marital funds were used to buy and improve the property and the property was placed in her husband’s father’s (Boris’s) name for tax purposes:

” The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment'” … . “[A]s these elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements are not established” … . “Thus, although the elements of a constructive trust must be proved by clear and convincing evidence … , [t]he constructive trust doctrine is given broad scope to respond to all human implications of a transaction in order to give expression to the conscience of equity and to satisfy the demands of justice'” … .

Here, evidence adduced at the hearing showed that the wife was related to the husband and Boris through marriage and that Boris allowed the Florida apartment to be used solely by the husband and wife as their vacation home for many years. Therefore, the first element for the imposition of a constructive trust was satisfied … . The wife also satisfied the second element by demonstrating the existence of an implied promise that [husband’s father] was holding title to the Florida apartment for purposes convenient to the husband and that the apartment belonged to the husband and wife … . She also demonstrated that, in reliance on that implied promise, marital funds were used to purchase the apartment and to make renovations costing more than $150,000 … . Furthermore, the wife demonstrated that a constructive trust was necessary ” to satisfy the demands of justice'” … . Kaprov v Stalinsky, 2016 NY Slip Op 08509, 2nd Dept 12-21-16

 

FAMILY LAW (EQUITABLE DISTRIBUTION, CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON PROPERTY PURCHASED AND IMPROVED WITH MARITAL FUNDS BUT TITLED TO ANOTHER)/EQUITABLE DISTRIBUTION (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON PROPERTY PURCHASED AND IMPROVED WITH MARITAL FUNDS BUT TITLED TO ANOTHER)/CONSTRUCTIVE TRUST (EQUITABLE DISTRIBUTION, CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON PROPERTY PURCHASED AND IMPROVED WITH MARITAL FUNDS BUT TITLED TO ANOTHER)

PETITIONERS DID NOT HAVE STANDING TO OBJECT TO CONSTRUCTION ON PARK LAND.

The Second Department determined petitioners did not have standing to object to the construction of a water purification facility, called an “air stripper” on park land. The petitioners alleged they frequented the park and the natural setting would be destroyed by the air stripper. Standing under the State Environmental Quality Review Act  (SEQRA) is demonstrated by injury which is different from any injury suffered by the public at large:

“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . “[I]n land-use and environmental cases, a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing . . . to challenge government actions that threaten that resource'” … .

Here, the petitioners failed to establish that they use and enjoy the portion of the park in the vicinity of the proposed location for the air stripper more than most other members of the public … . Matter of Brummel v Town of N. Hempstead Town Bd., 2016 NY Slip Op 08513, 2nd Dept 12-21-16

 

ENVIRONMENTAL LAW (PETITIONERS DID NOT HAVE STANDING TO OBJECT TO CONSTRUCTION ON PARK LAND)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PETITIONERS DID NOT HAVE STANDING TO OBJECT TO CONSTRUCTION ON PARK LAND)/STANDING (ENVIRONMENTAL LAW, PETITIONERS DID NOT HAVE STANDING TO OBJECT TO CONSTRUCTION ON PARK LAND)

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COURTS OF EQUITY HAVE BROAD POWERS TO ACT IN THE INTEREST OF JUSTICE, FORECLOSURE IS EQUITABLE IN NATURE, MOTION TO VACATE DEFAULT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined that defendant’s motion to vacate a default judgment in this foreclosure action should have been granted in the interest of justice. The court explained the “interest of justice” powers in this context:

“In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” … . Moreover, “[a] foreclosure action is equitable in nature and triggers the equitable powers of the court … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … . Thus, a court may rely on “its inherent authority to vacate [a judgment] in the interest of substantial justice, rather than its statutory authority under CPLR 5015(a),” as the “statutory grounds are subsumed by the court’s broader inherent authority” … . U.S. Bank Natl. Assn. v Losner, 2016 NY Slip Op 08560, 2nd Dept 12-21-16

CIVIL PROCEDURE (COURTS OF EQUITY HAVE BROAD POWERS TO ACT IN THE INTEREST OF JUSTICE, FORECLOSURE IS EQUITABLE IN NATURE, MOTION TO VACATE DEFAULT SHOULD HAVE BEEN GRANTED)/FORECLOSURE (COURTS OF EQUITY HAVE BROAD POWERS TO ACT IN THE INTEREST OF JUSTICE, FORECLOSURE IS EQUITABLE IN NATURE, MOTION TO VACATE DEFAULT SHOULD HAVE BEEN GRANTED)/EQUITY (COURTS OF EQUITY HAVE BROAD POWERS TO ACT IN THE INTEREST OF JUSTICE, FORECLOSURE IS EQUITABLE IN NATURE, MOTION TO VACATE DEFAULT SHOULD HAVE BEEN GRANTED)/DEFAULT, MOTION TO VACATE (FORECLOSURE, COURTS OF EQUITY HAVE BROAD POWERS TO ACT IN THE INTEREST OF JUSTICE, FORECLOSURE IS EQUITABLE IN NATURE, MOTION TO VACATE DEFAULT SHOULD HAVE BEEN GRANTED)

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REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION.

The Second Department, in a full-fledged opinion by Justice Dickerson, determined requiring an out-of-state resident to post security for costs associated with a lawsuit brought in New York does not violate the Privileges and Immunities Clause of the US Constitution. The plaintiff was injured in an accident in New York (when she was a New York resident) and subsequently moved to Georgia. The defendants moved pursuant to CPLR 8501 and 8503 to direct plaintiff to post security for costs in the amount of $500:

… [T]he U.S. Supreme Court has stated that the Privileges and Immunities Clause is satisfied so long as a nonresident ” is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he [or she] may have'” … . … There is a substantial reason for the difference in treatment between nonresidents and residents, namely, the fact that nonresident plaintiffs are unlikely to have assets in New York that may be used to enforce a costs judgment. And the discrimination practiced against nonresidents—requiring nonresident plaintiffs to post security for costs—bears a substantial relationship to the State’s objective of deterring frivolous or harassing lawsuits and preventing a defendant from having to resort to a foreign jurisdiction to enforce a costs judgment … . Clement v Durban, 2016 NY Slip Op 08500, 2nd Dept 12-21-16

CIVIL PROCEDURE (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/COSTS (CIVIL PROCEDURE, REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/SECURITY (COSTS CIVIL PROCEDURE, REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/CONSTITUTIONAL LAW (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/PRIVILEGES AND IMMUNITIES CLAUSE (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)

ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED.

The Second Department, in a full-fledged opinion by Justice Dickerson, reversing Supreme Court, determined shopping center development plans which were left for a few days with the town planner, and which were displayed and briefly discussed at a planning board meeting, were “records” within the meaning of the Public Officers Law (Freedom of Information Law). Therefore petitioner’s request for the documents was not frivolous and sanctions, her petition should not have been denied, and attorneys fees should not have been assessed against her:

The Court of Appeals has “required that FOIL be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government'” … . “The legislative purpose is mainly accomplished through the definitions of Agency’ and Record.’ . . . Record’ is broadly defined to include any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form whatsoever'” … . “[T]his very broad definition is not limited by the purpose for which a document was originated or the function to which it relates” … .

Here, it is undisputed that Camarda, the developer’s owner, left the subject architectural renderings in the possession of Williams, the Town Planner, for a number of days, and that Williams displayed the renderings at the meeting of the Planning Board … . Thus, the renderings were “kept” and “held” by an agency, and were “records” within the meaning of FOIL … Since the definition of “record” is not limited by the purpose for which a document was originated or the function to which it relates, the fact that Camarda did not formally submit the renderings as part of an application for approval of an amended site plan is irrelevant. Matter of Fanizzi v Planning Bd. of Patterson, 2016 NY Slip Op 08361, 2nd Dept 12-14-16

 

FREEDOM OF INFORMATION LAW (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)/MUNICIPAL LAW (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)/TOWN PLANNING BOARD (ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED)

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MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE.

The Second Department determined mother could not recover for emotional distress based upon alleged in utero medical malpractice when the baby is born alive. Here the baby was born alive but not conscious and died eight days later:

When an infant who is injured by medical malpractice while in utero survives the pregnancy, the infant may seek damages for his or her injuries … . If the pregnant mother suffers an independent injury as a result of malpractice, she may commence suit to recover for her own personal injuries … . If the malpractice causes a stillbirth or miscarriage, the mother can recover for emotional injuries even without showing that she suffered an independent physical injury … . However, where, as here, the alleged medical malpractice causes in utero injury to a fetus that is born alive, the mother cannot recover damages for emotional harm … . Ward v Safajou, 2016 NY Slip Op 08394, 2nd Dept 12-14-16

NEGLIGENCE (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/MEDICAL MALPRACTICE (MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/IN UTERO INJURY (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)/EMOTIONAL DISTRESS (MEDICAL MALPRACTICE, MOTHER CAN NOT RECOVER FOR EMOTIONAL DISTRESS CAUSED BY IN UTERO INJURY WHEN THE BABY IS BORN ALIVE)

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DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT].

The Second Department determined plaintiffs raised a question of fact when the terms of the lease created a duty on the part of the tenant (the City here) to maintain the abutting sidewalk:

Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property, and specifically imposes liability upon certain property owners for injuries resulting from a violation of the code provision (see Administrative Code § 7-210…).

As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party … . This is in accordance with the principle that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, the Court of Appeals has recognized that there are exceptions to this general rule and that there are situations in which a party who enters into a contract may be said to have assumed a duty of care to third parties

The lease, inter alia, required the City, at its sole cost and expense, to take good care of the sidewalk, and “make all repairs thereto, ordinary and extraordinary, foreseen and unforeseen.” It also provided that the former owner “shall have no responsibility and shall not be required to furnish any services, make any repairs or to perform any other maintenance work.” The plaintiffs’ submission of this evidence raised a triable issue of fact as to whether the City’s lease was comprehensive and exclusive as to sidewalk maintenance so as to entirely displace the former landowner’s duty to maintain the sidewalk … . Hsu v City of New York, 2016 NY Slip Op 08348, 2nd Dept 12-14-16

NEGLIGENCE (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/CONTRACT LAW (TORT LIABILITY TO THIRD PARTIES, DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY)/LANDLORD-TENANT (SLIP AND FALL, DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/SLIP AND FALL (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/SIDEWALKS (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])

DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE.

The Second Department, reversing Supreme Court, determined summary judgment should have been granted to defendant Brady in this bicycle-car collision case. Brady was parked parallel to Dunbar waiting for Dunbar to pull out of a parking space. Plaintiff rode her bicycle between the two cars and struck the door of the Dunbar car when Dunbar opened it to speak to Brady. Brady’s car was deemed not to be a proximate cause of the accident, rather the position of Brady’s car merely furnished the condition for the accident. Dunbar’s motion for summary judgment, however was properly denied:

The Supreme Court should have granted Brady’s motion for summary judgment dismissing the second supplemental complaint insofar as asserted against him. Although the issue of proximate cause is generally one for the jury … , “liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event’ but was not one of its causes” … . Here, in support of his motion, Brady demonstrated his prima facie entitlement to judgment as a matter of law by presenting evidence that his conduct in stopping his car while waiting for a parking space merely furnished the condition or occasion for the accident, and was not a proximate cause of the plaintiff’s injuries … .

… Dunbar failed to eliminate all triable issues of fact as to whether Dunbar was negligent in opening the door when it was not reasonably safe to do so, and in allegedly failing to see what, by the reasonable use of his senses, he should have seen … . Price v Tasber, 2016 NY Slip Op 08385, 2nd Dept 12-14-16

 

NEGLIGENCE (DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)/PROXIMATE CAUSEEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)/ BICYCLES (DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)/CONDITION FOR ACCIDENT (DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE)

WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS.

The Second Department after the grant of defendant’s summary judgment motion in this slip and fall case. The wheel stop over which plaintiff tripped was deemed open and obvious and not inherently dangerous:

Although a landowner has a duty to maintain its premises in a reasonably safe manner … , there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous … . Generally, “[a] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff’s deposition testimony and photographic evidence demonstrating that the plaintiff tripped when her foot came into contact with a wheel stop that was open and obvious and not inherently dangerous. Among other things, the plaintiff testified at her deposition that she noticed the yellow cement wheel stops in the parking lot shortly before her accident … . Bogaty v Bluestone Realty NY, Inc., 2016 NY Slip Op 08343, 2nd Dept 12-14-16

 

NEGLIGENCE (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/SLIP AND FALL (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/WHEEL STOPS (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)/OPEN AND OBVIOUS (WHEEL STOP OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS)

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