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Plaintiff Wife Not Entitled to Distributive Award of Husband’s Separate Property Which Was Not Shown to Have Appreciated During the Marriage

The Second Department explained the equitable distribution principles applied to separate property which has not been demonstrated to have appreciated during marriage.

Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” … . The defendant overcame the presumption that funds he deposited into the account of Clark Development, LLC (hereinafter CD, LLC), a company he formed during the marriage, were marital funds by presenting sufficient evidence that the source of the funds was separate property … . Moreover, although appreciation of, or increase in the value of, separate property is considered separate property, “except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (Domestic Relations Law § 236[B][1][d][3]), the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant’s separate property, appreciated in value during the parties’ marriage … . Accordingly, the Supreme Court erred in directing that the plaintiff was to receive a distributive award relating to CD, LLC. Clark v Clark, 2014 NY Slip Op 03224, 2nd Dept 5-7-14

Similar issue and result in Turco v Turco, 2014 NY Slip Op 03257, 2nd Dept 5-7-14

 

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Courts Do Not Have Subject Matter Jurisdiction Over Disputes Requiring Inquiry Into Religious Doctrine

The Second Department determined a dispute among religious parties could not be determined in the courts because it would involve an impermissible inquiry into religious doctrine or practice:

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs. Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … . Here, the claims asserted by the plaintiff are nonjusticiable, as they cannot be resolved based on neutral principles of law. Rather, resolution of the issues raised would necessarily involve an impermissible inquiry into religious doctrine or practice … . Rodzianko v Parish of the Russion Orthodox Holy Virgin Protection Church Inc, 2014 NY Slip Op 03249, 2nd Dept 5-7-14

 

Plaintiff Cannot Be the Only Link between the Defendant and the Forum/Defendant’s “Minimum Contacts” with New York Not Demonstrated

The Second Department determined New York courts did not have subject matter jurisdiction in an action against a Texas physician who had treated plaintiff’s late mother when she resided in Texas and Florida.  The court explained the relevant analysis:

Where a motion is made to dismiss an action for lack of personal jurisdiction, it is the plaintiff who bears the ultimate burden of proving a basis for such jurisdiction … . A plaintiff relying on CPLR 302(a)(3)(ii) “must show that (1) the defendant committed a tortious act outside New York; (2) the cause of action arose from that act; (3) the tortious act caused an injury to a person or property in New York; (4) the defendant expected or should reasonably have expected the act to have consequences in New York; and (5) the defendant derived substantial revenue from interstate or international commerce” … . Once those elements are met, an assessment must then be made as to whether a finding of personal jurisdiction satisfies due process … .

Here, the plaintiff failed to establish that the defendant’s alleged tortious act — prescribing medication in Texas to the plaintiff’s mother while she was in Texas and in Florida — caused injury in New York … . Moreover, under the circumstances, the plaintiff failed to establish that the defendant expected or should reasonably have expected the act to have consequences in New York, or that the defendant “derive[d] substantial revenue from interstate . . . commerce” (CPLR 302[a][3][ii]). In addition, the plaintiff failed to establish that the defendant had the requisite “minimum contacts” with New York such that the prospect of defending a suit here comported with “traditional notions of fair play and substantial justice,” as required by the Federal Due Process Clause … .

On February 25, 2014, the Supreme Court of the United States rendered a decision refining the “minimum contacts” analysis set forth in International Shoe Co. (see Walden v Fiore, _____ US _____, 134 S Ct 1115). The Supreme Court determined that a “plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him” (id. at 1122). Moreover, the Supreme Court held that, “[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated’ contacts he makes by interacting with other persons affiliated with the State” … . Waggaman v Arauzo, 2014 NY Slip Op 03259, 2nd Dept 5-7-14

 

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Murder Conviction Against the Weight of the Evidence—Strangulation Was the Result of an Attempt to Increase Sexual Pleasure—No Intent to Kill

The Second Department determined that defendant’s conviction for intentional murder was against the weight of the evidence.  The victim died of strangulation, but the defendant’s actions were motivated by the desire to increase sexual pleasure, not by an intent to kill.  People v Davis, 2014 NY Slip Op 03277, 2nd Dept 5-7-14

 

Motion to Disqualify an Attorney Who Had Previously Represented Both Parties and Related Businesses Should Have Been Granted

The Second Department determined a motion to disqualify an attorney who had represented both parties in related matters should have been granted:

Here, prior to the commencement of this action, the defendant’s attorney had provided legal advice to both the appellant, Barbara Gordon, and the defendant in their capacity as business partners and members of several limited liability companies. There was a substantial relationship between the involvement of the defendants’ attorney in the formation of those limited liability companies, and his involvement as general counsel to those limited liability companies in connection with the instant action for an accounting. In his capacity as general counsel, the defendant’s attorney was in a position to receive relevant confidences regarding several of those limited liability companies, in which the plaintiff’s interests are now adverse to the defendant’s interests. Thus, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant’s motion to disqualify the defendants’ attorney… . Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 2014 NY Slip Op 03232, 2nd Dept 5-7-14

 

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Replevin and Order of Seizure (Asserting a Superior Right to Property) Explained

The Second Department, in determining an order of seizure had been properly granted, explained the law of replevin and an order of seizure:

“The action of replevin is essentially possessory in its nature.”… . “A cause of action sounding in replevin must establish that the defendant is in possession of certain property of which the plaintiff claims to have a superior right” … .

“An order of seizure is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel” … . Pursuant to CPLR 7102, an application for an order of seizure must be supported by an affidavit that “clearly identif[ies] the chattel to be seized” and states, among other things, facts demonstrating “that the plaintiff is entitled to possession” of the chattel, that “the chattel is wrongfully held by the defendant,” and that “no defense to the claim is known to the plaintiff” (CPLR 7102[c]…). Southeast Fin LLC v Broadway Towing Inc, 2014 NY Slip Op 03254, 2nd Dept 5-7-14

 

Co-Tenant Acquired Entire Parcel by Adverse Possession

The Second Department determined a co-tenant of land owned by tenants in common had adversely possessed the entire parcel for the required 20-year period.  The court explained the applicable legal principles:

“Adverse possession must be proven by clear and convincing evidence” … . “To establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period” … . ” [A]n inference of hostile possession or a claim of right will be drawn [where] the other elements of adverse possession are established, unless, prior to the vesting of title, the party in possession has admitted that title belongs to another'” … . Moreover, under the law existing at the time title allegedly vested here, in the absence of an overt acknowledgment during the statutory period that ownership rested with another party, actual knowledge of the true owner, or co-owner as is the case here, did not destroy the element of claim of right … . “Where, as here, the party claiming adverse possession is a tenant-in-common in exclusive possession, the statutory period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession” … . Galli v Galli, 2014 NY Slip Op 03231, 2nd Dept 5-7-14

 

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Questions of Fact Raised About Whether Ambulance Driver Was Engaged in an Emergency Operation at the Time of the Accident, and If So, Whether the Ambulance Driver Was Reckless in Violation of Vehicle and Traffic Law 1104

The Second Department determined questions of fact existed about whether an ambulance driver (Stewart) was engaged in an emergency operation at the time of the accident and, if so, whether Stewart acted recklessly in violation of Vehicle and Traffic Law 1104:

Vehicle and Traffic Law § 114-b defines emergency operation as: “[t]he operation . . . of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency.” In the instant case, the plaintiff presented evidence that the radio call to which Stewart was responding was for the police to assist, and that Stewart sought to offer assistance in the form of “crowd control . . . until the police got there.” Under the circumstances presented here, we agree with the plaintiff that triable issue of fact is presented as to whether Stewart was operating the ambulance as part of an emergency operation as contemplated by the statute … .

We also find that the record presents factual issues as to whether Stewart’s conduct constituted reckless disregard. The “reckless disregard” standard requires proof that Stewart intentionally committed “an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” … . In the instant matter, the plaintiff submitted an affidavit from a nonparty witness that raised triable issues of fact as to whether the ambulance slowed down prior to entering the intersection at which the collision occurred. Although Stewart claimed that she was traveling five miles per hour through the subject intersection, the witness averred in his affidavit that Stewart was driving at a high rate of speed, without ever slowing down, on the wrong side of the road through a steady red signal. “Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact” … . Thus, triable issues of fact have been raised … . Torres v Saint Vincent’s Catholic Med Ctrs of NY, 2014 NY Slip Op 03256, 2nd Dept 5-7-14

 

Allegation Plaintiff Driver Stopped Suddenly for No Reason Raised a Question of Fact About Whether the Driver Who Struck Plaintiff’s Vehicle from Behind Was Negligent

The Second Department determined defendant driver (Catania) whose vehicle struck plaintiff’s vehicle from behind had raised a question of fact about whether there was a non-negligent explanation for the collision.  Defendant alleged plaintiff stopped suddenly for no reason:

The Supreme Court erred in granting the plaintiff’s motion for summary judgment on the issue of liability. Although the plaintiff’s affidavit in support of the motion demonstrated that his vehicle was struck in the rear, thus raising an inference of Catania’s negligence, the plaintiff’s submissions, which included a transcript of Catania’s deposition testimony, revealed a triable issue of fact as to whether Catania had a nonnegligent explanation for the collision. Catania testified at his deposition that his vehicle was stopped at a traffic light at a distance of approximately eight feet behind the plaintiff’s vehicle. When the light changed to green, Catania maintained a safe distance between the two vehicles, but the plaintiff came to an abrupt stop for no apparent reason when there was no pedestrian or vehicular traffic in front of it, and the two vehicles collided. Under these circumstances, a triable issue of fact exists… . Fernandez v Babylon Mun Solid Waste, 2014 NY Slip Op 03230, 2nd Dept 5-7-14

 

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Suit Against Town by Representatives of Ambulance Personnel Killed in an Accident Prohibited by Volunteer Ambulance Workers’ Benefit Law/Question of Fact Whether Ambulance Driver Was Reckless (in Violation of Vehicle and Traffic Law 1104)

The Second Department determined the town was protected against a suit by representatives of ambulance personnel killed when the ambulance was involved in an accident.  Volunteer Ambulance Workers’ Benefit Law section 19 provides an exclusive remedy (much like the Workers’ Compensation Law) and thereby precluded the lawsuit against the town.  The Second Department also determined a question of fact had been raised about whether the ambulance driver was reckless.  Therefore suit against the driver was not precluded by Vehicle and Traffic Law 1104 which imposes a “reckless disregard” standard for causes of action against the drivers of emergency vehicles.  It is worth noting that the question of fact under the “reckless disregard” standard was found to exist in spite of a Department of Motor Vehicles hearing which determined the ambulance driver did not act recklessly.  Ryan v Town of Riverhead, 2014 NY Slip Op 03250, 2nd Dept 5-7-14

 

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