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Agreement to Assist Spouse in Obtaining a Visa Did Not Render the Marriage a Sham and the Separation Agreement Unenforceable/Agreement to Pay for One-Half of a Jointly Held Business Could Be Severed from Any Arguably Unenforceable Portions of the Separation Agreement/Even Where a Marriage is Annulled as Void or Voidable, Equitable Distribution Rules Apply

Reversing Supreme Court, the Second Department determined the provision in a separation agreement in which one spouse agreed to help the other obtain a visa did not render the marriage a sham and the separation agreement unenforceable. Therefore the provision of the separation agreement that one spouse pay the other one-half of the value of a jointly-owned business was enforceable. The Second Department noted that even if a portion of the agreement was not enforceable, the valid provisions could remain enforceable. The Second Department further noted that equitable distribution rules apply even when a marriage is annulled as void or voidable:

Although parties are usually free to chart their own contractual course, that is not the case in certain situations where public policy would be offended … . Further, as a general rule, illegal contracts are unenforceable … , and this includes marital agreements for visa sponsorship that unlawfully circumvent United States immigration laws … .

Here, the terms and conditions of the separation agreement ostensibly required the plaintiff to assist the defendant in obtaining a visa. Further, in an affidavit submitted in support of her motion, the plaintiff admitted that she stayed in the marriage longer than she wished so that the defendant could obtain an E-2 dependent visa. However, there is no proof that the marriage was a sham, or that any other tribunal or government agency had made such a determination.

More importantly, even if the Supreme Court was correct in determining that certain terms of the separation agreement are illegal and unenforceable, the terms directing the defendant to compensate the plaintiff for transferring her interest in the business to him would nevertheless be severable and enforceable … . Where an agreement consists of an unlawful objective in part and a lawful objective in part, the court may sever the illegal aspect and enforce the legal one, so long as the “illegal aspects are incidental to the legal aspects and are not the main objective of the agreement” … . Whether a contract is to be enforced in its entirety or is severable is generally a question of intent, “to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted” … . Moreover, “[c]ourts will be particularly ready to sever the illegal components and enforce the other components of a contract where the injured party is less culpable and the other party would otherwise be unjustly enriched by using his own misconduct as a shield against otherwise legitimate claims” … . Here, the separation agreement contained an express provision that the doctrine of severability shall apply should any particular term of the agreement be deemed invalid or unenforceable.

Contrary to the Supreme Court’s determination, we do not find that the main objective of the parties’ separation agreement was to compensate the plaintiff for remaining in the marriage and thereby helping the defendant obtain a visa (cf. Donnell v Stogel, 161 AD2d at 97). The separation agreement addressed various aspects of the parties’ marriage, including distribution of their marital assets. According to the plain language of the separation agreement, the $30,000 payment to the plaintiff constitutes compensation for the transfer of her 50% interest in the business that the parties co-owned at the time of the marriage. Notably, the parties agreed that, even if the visa sponsorship did not come to fruition, the defendant would still be obligated to pay the distribution of the value of the business.

It should be noted that, even if the marriage were proven to be a sham marriage, either party could have sought a divorce, a judgment declaring the nullity of a void marriage (see Domestic Relations Law § 140), or an annulment of a voidable marriage (see id.), all of which mandate the equitable distribution of assets acquired during the marriage (see Domestic Relations Law § 236[B][5][a], [c]…). Absent a judicial finding, after a hearing, that the money to be transferred to the plaintiff was payment for spousal sponsorship of a visa and nothing more, which would be against public policy and thus unenforceable in court, the terms of the separation agreement dealing with the distribution of assets acquired during the marriage are enforceable, separate and apart from any unenforceable terms. Thus, the terms of the separation agreement governing the transfer of the previously co-owned business in exchange for $30,000 are severable from any terms of the separation agreement which may be unenforceable … . Lanza v Carbone, 2015 NY Slip Op 05917, 2nd Dept 7-8-15

 

Court Cannot Condition Future Visitation On Parent’s Participation in Counseling or Treatment

The Second Department noted that a court may not condition future visitation upon a parent’s participation in counseling or treatment because such a condition effectively removes control over visitation from the court:

A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]…). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order … .

However, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights” … . The rationale underlying this rule is that “a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights,” a determination that is properly made by the court … . Lajqi v Lajqi, 2015 NY Slip Op 05916, 2nd Dept 7-8-15

 

Late Submission of QDRO (Re: Spouse’s Pension) Did Not Affect Submitting Spouse’s Right to Arrears to the Date of Retirement—One Spouse’s Taking Out a Loan Against His/Her Pension Will Not Reduce the Other Spouse’s Share of the Pension

The Second Department, in an extensive, full-fledged opinion by Justice Dillon, resolving at least two issues of first impression, and noting differences among the Appellate Divisions, discussed: (1) the effect of a delay in submitting a Qualified Domestic Relations Order (QDRO) for a share of the other spouse’s pension (despite the delay the submitting spouse is entitled to arrears to the date of retirement); (2) the requirement that any QDRO be in accordance with a stipulation of settlement which has not merged (court can not expand or contract what was agreed to); (3) whether a loan taken against a pension should reduce the other spouse’s portion of the pension (no, it should not); and (4) whether a spouse’s portion of the other spouse’s pension should be reduced because of the election of a survivorship benefit in favor of a the other spouse’s new spouse (yes, it should).  In a nutshell, the court held that the late submission of a QDRO did not deprive the submitting spouse of the right to arrears, and a spouse’s share if the other spouse’s pension should not be reduced because of the other spouse’s taking out a loan against the pension:

A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation … . If an agreement is clear and unambiguous on its face, “the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence” … . “When the distribution of pension benefits between former spouses is accomplished through a QDRO obtained pursuant to a stipulation, such QDRO can convey only those rights to which the parties stipulated as a basis for the judgment'” … . If a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO “to accurately reflect the provisions of the stipulation pertaining to the pension benefits” … . Thus, a court cannot issue a QDRO “encompassing rights not provided in the underlying stipulation” …, or one that is more expansive than the stipulation.  * * *

Despite the plaintiff’s delay in submitting a proposed QDRO to the Supreme Court, we reject the defendant’s contention that the plaintiff is not entitled to the arrears in pension benefits that accumulated between March 1, 2008, the date that the defendant retired from the FDNY, to March 26, 2013, the date that the Supreme Court signed the plaintiff’s proposed QDRO. An action to enforce a distributive award in a matrimonial action is governed by a six-year statute of limitations … . However, this Court … made clear that since a QDRO is derived from the bargain struck by the parties, there is no need to commence a separate, plenary action to formalize the agreement, and that “an application or motion for the issuance of a QDRO is not barred by the statute of limitations” … . * * *

… [W]e conclude that the plaintiff’s Majauskas share must be calculated with reference to the reduction in benefits resulting from the defendant’s provision of survivorship benefits to his second wife, we agree with the plaintiff that her share should be calculated without reference to the reduction in benefits resulting from the loan made to the defendant. Kraus v Kraus, 2015 NY Slip Op 05915, 2nd Dept 7-8-15

 

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Declaratory Judgment, Not Mandamus, Was Proper Vehicle for Determining Whether a Town Was Obligated to Repair a Bridge

The Second Department determined Supreme Court properly converted a mandamus proceeding to a declaratory judgment proceeding and properly found that the town was obligated, under the Highway Law, to repair an unsafe bridge. However, Supreme Court did not have the power to direct the town to make the repairs “as expeditiously as possible.”  The Second Department explained the relevant law:

“The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated” …, whereas declaratory relief “is not an extraordinary remedy,” as it “only provides a declaration of rights between parties” and “cannot be executed upon so as to compel a party to perform an act” … . Here, the appellants correctly concede that the Town is obligated to repair and maintain the Dock Street Bridge, since it is part of a highway by use within the meaning of Highway Law § 189 by virtue of the Town’s maintenance of Dock Street for the requisite statutory time period … . However, as the Supreme Court correctly observed, “[t]he many factors involved in a determination as to when and how bridges should be constructed, reconstructed and repaired militate that such judgments must be left to the [Town], with due regard to fiscal appropriations, and should not be the subject of judicial fiat” … . Thus, the Supreme Court properly converted the proceeding to a declaratory judgment action pursuant to CPLR 103(c) and, thereupon, declared that the Town “is responsible for the maintenance, repair, and/or replacement of the Dock Street Bridge”… .

However, the Supreme Court erred by declaring that the Town “shall take all measures necessary to fulfill its legal obligation to repair or replace the Dock Street Bridge, as expeditiously as possible in consideration of . . . fiscal and other concerns.” It is beyond cavil that ” questions of judgment, discretion, allocation of resources and priorities [are] inappropriate for resolution in the judicial arena'” … . As the Supreme Court recognized, it is within the discretion of the Town to “investigat[e] . . . the most appropriate method of repairing or replacing the bridge, and the potential availability of grants and funding sources other than the [T]own’s tax base” to address its “present financial inability to replace the Dock Street Bridge,” and courts cannot interfere with this function … . Consequently, the Supreme Court’s declaration that the Town must “take all measures necessary to . . . repair or replace the Dock Street Bridge[ ] as expeditiously as possible” was purely advisory and does not create any binding obligation on the Town. Thus, this declaration was improper … . Matter of Hyde Park Landing, Ltd. v Town of Hyde Park, 2015 NY Slip Op 05945, 2nd Dept 7-8-15

 

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Sua Sponte Dismissal for Lack of Standing Reversed—Defendants Did Not Raise the Defense and Therefore Waived It—Lack of Standing is Not a Jurisdictional Defect

The Second Department determined Supreme Court should not have, sua sponte, dismissed the foreclosure action for an alleged lack of standing. The defendants did not raise the standing defense and, therefore, waived it. Standing is not a jurisdictional defense warranting sua sponte action by the court:

The Supreme Court improperly, sua sponte, directed the dismissal of the complaint on the ground that the plaintiff lacked standing. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint … . Since the defendants … did not raise the defense of lack of standing in their answers and did not make pre-answer motions to dismiss the complaint on that ground, they waived the issue … . Moreover, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . Onewest Bank, FSB v Prince, 2015 NY Slip Op 05922, 2nd Dept 7-8-15

 

“Conclusory” Allegation Rear-End Collision Was Caused by the Sudden Stop of the Lead Vehicle Is Not Enough to Defeat Plaintiffs’ Summary Judgment Motion

Reversing Supreme Court, the Second Department determined plaintiffs, who were struck from the rear in a vehicle collision, were entitled to summary judgment. A “conclusory” allegation by the defendant that plaintiffs’ vehicle caused the accident by stopping suddenly was not enough to defeat the motion.  The court explained the relevant law:

“When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle” … .

“A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision”‘ … .

A nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle … . However, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead”… . Moreover, “[a] conclusory assertion by the operator of the following vehicle that the sudden stop of the vehicle caused the accident is insufficient, in and of itself, to provide a nonnegligent explanation” … . Brothers v Bartling, 2015 NY Slip Op 05630, 2nd Dept 7-1-15

 

The Defendants, Lessees of the Property Abutting the Sidewalk, Demonstrated in their Summary Judgment Motion that there Was No Statute or Ordinance Imposing Liability on Lessees for Failure to Clear Snow and Ice from the Sidewalk, But the Defendants Did Not Affirmatively Demonstrate They Did Not Make the Condition More Hazardous by their Snow Removal Efforts—Therefore the Summary Judgment Motion Must Be Denied Without Reference to the Answering Papers

The Second Department determined defendants, who leased the premises abutting a sidewalk in Brooklyn, were not entitled to summary judgment dismissing a “snow and ice” slip and fall complaint. The defendants demonstrated that there was no statute or ordinance imposing tort liability. However the defendants failed to affirmatively demonstrate that their snow removal efforts did not make conditions more hazardous (another example of the need for a defendant bringing a summary judgment motion to address every possible theory of liability):

” The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so'” … . “In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous” … .

Here, the … defendants, as lessees of the property, established that no statute or ordinance imposed tort liability on them (cf. Administrative Code of City of NY 7-210 [applicable to owners of real property]). However, they failed to make a prima facie showing that there were no efforts to clear the sidewalk on the date of the injured plaintiff’s accident or that any snow and ice removal efforts undertaken by them or by persons on their behalf did not exacerbate the hazardous condition which allegedly caused the injured plaintiff to fall … . Forlenza v Miglio, 2015 NY Slip Op 05639, 2nd Dept 7-1-15

 

Warrantless Arrest in Doorway of Defendant’s Apartment Did Not Violate the Payton Rule

The Second Department determined the warrantless arrest of the defendant in the doorway of his apartment did not violate the “Payton” rule which prohibits warrantless arrests in the home:

Contrary to the defendant’s contention, his arrest did not violate his rights under Payton v New York (445 US 573) and People v Levan (62 NY2d 139, 144). “The rule announced in Payton and applied in Levan is clear and easily understood: a person enjoys enhanced constitutional protection from a warrantless arrest in the interior of the home, but not on the threshold itself or the exterior” … . As pertinent to this case, where the defendant lived in the upstairs apartment of a building containing two separate apartments, there is clearly a “distinction between homes and common areas such as halls and lobbies . . . which are not within an individual tenant’s zone of privacy” … .

Here, the hearing evidence demonstrated that the police entered the building the defendant lived in through the front door. Thereafter, they passed through a vestibule before climbing the stairs to the defendant’s upstairs apartment. One of the officers knocked on the closed apartment door, the defendant opened it, and the officer effectuated the arrest in the doorway. The arresting officer did not go inside the defendant’s apartment …, or reach in to pull the defendant out … . Since the defendant was arrested at the threshold of his apartment, after he “voluntarily emerged [and thereby] surrendered the enhanced constitutional protection of the home” …, his warrantless arrest did not violate Payton and Levan … . People v Garvin, 2015 NY Slip Op 05695, 2nd Dept 7-1-15

 

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Question of Fact Whether Out-of-Possession Landlord Relinquished Control of the Premises to the Extent that Its Duty to Maintain the Premises in a Reasonably Safe Condition Was Extinguished—Lease Allowed Landlord to Reenter to Inspect and Make Repairs and Improvements

The Second Department determined there were questions of fact whether an out-of-possession landlord (Marphil Realty) was liable for a dangerous condition (resulting in a fire). The lease gave the landlord the right to reenter during usual business hours in order to inspect the premises and to make repairs and improvements. Therefore there was a question of fact whether the landlord had relinquished complete control over the property such that its duty to maintain the property in a reasonably safe condition was extinguished:

“Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . “That duty is premised on the landowner’s exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others'” … . Accordingly, “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . However, an out-of-possession landlord may be liable for injuries occurring on the premises if “it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs” … . Yehia v Marphil Realty Corp., 2015 NY Slip Op 05670, 2nd Dept 7-1-15

 

Judge’s Failure to Properly Handle Note from Jury Was Reversible Error

The Second Department determined the trial judge’s failure to follow the proper procedure for answering a note from the jury was reversible error.  The jury sent out a note requesting a readback of alibi testimony. Just after that note was read to the jury and the parties for the first time, the trial judge read a second note which indicated the jury had reached a verdict.  Without addressing the first note, the verdict was pronounced. Defense counsel was not alerted to the contents of the first note or the judge’s intended response and was not given a chance to suggest a response before the jury was called in. a violation of CPL (Criminal Procedure Law 310.30):

A court’s ” core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request—in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'” … . “Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . preservation is not required” … . Furthermore, “we cannot assume that [such an] omission was remedied at an off-the-record conference that the transcript does not refer to” … .

Here, the jury note requested a readback of the defense witnesses’ alibi testimony. This note was read for the first time on the record before all parties and the jury. Immediately thereafter, the trial court read a second note from the jury advising that a verdict had been reached, at which point the verdict was pronounced. The trial court failed to meet its “core responsibilities” …, since defense counsel was not alerted on the record to the contents of the note and to the court’s intended response, or nonresponse, prior to calling back the jury (see id.). “[A]lthough a defense counsel who is given notice of the trial court’s intended response might be expected to object at a time when counsel had an opportunity to ask [the court] to alter course’ … counsel here had no such opportunity because he learned of the trial court’s response at the same time the jury heard it” … . The defendant was thus deprived of any opportunity to voice opposition to the trial court’s decision to pass over the first note and proceed directly to the verdict without further inquiry. People v Wiggs, 2015 NY Slip Op 05707, 2nd Dept 7-1-15

 

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