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Petitioner, Who Was Not a Biological or Adoptive Parent of the Child, Was Adjudicated a Parent in a Support Proceeding Brought by the Respondent—Under the Doctrine of Judicial Estoppel, Petitioner Was Deemed a Parent in a Subsequent Custody/Visitation Proceeding Brought by the Petitioner

The Second Department determined a determination that petitioner (Arriago) was the child's parent in a support proceeding precluded the respondent (Dukoff) from arguing petitioner was not the child's parent in a subsequent custody/visitation proceeding.  Arriago and Dukoff were domestic partners in a same-sex relationship.  Arriago was artificially inseminated and gave birth to the child.  After successfully seeking child support from Arriago because Arriago was a parent of the child, Dukoff argued that Arriago did not have standing, as neither the biological or adoptive parent, to bring the custody/visitation proceeding.  Family Court disagreed and awarded Arriago visitation:

Dukoff … argues that the court's conclusion that Arriaga had standing to commence this [custody/support] proceeding is contrary to the Court of Appeals' holdings in Debra H. v Janice R. (14 NY3d 576) and Matter of Alison D. v Virginia M. (77 NY2d 651). We disagree with Dukoff's contentions.

Domestic Relations Law § 70(a) provides, in part, that “either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and [the court] may award the natural guardianship, charge and custody of such child to either parent . . . as the case may require” (emphasis added). This statute has also been construed to grant standing to ” either parent'” to apply for a writ of habeas corpus to determine the issue of visitation rights … . In Debra H., the Court of Appeals reaffirmed its holding …  that the term “parent” in Domestic Relations Law § 70 encompasses only the biological parent of a child or a legal parent by virtue of adoption and that a “de facto parent” or “parent by estoppel” could not seek visitation with a child who is in the custody of a fit parent (Debra H. v Janice R., 14 NY3d at 590 [internal quotation marks and emphasis omitted]…). In Debra H., however, the Court analyzed the significance of the civil union the parties had entered into in Vermont prior to the child's birth. The Court determined that, under Vermont law, a child born during a civil union was a child of both partners. Thus, it concluded, Debra H. was the child's parent under Vermont law. As a matter of comity, the Court recognized her as the child's parent under New York law as well, thereby conferring standing for her to seek visitation and custody at a best interests hearing (see Debra H. v Janice R., 14 NY3d at 601).

The Court of Appeals noted that recognizing Debra H. as a parent did not conflict with the public policy of New York and would not “undermine the certainty that Alison D. promises biological and adoptive parents and their children,” since “whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent's legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage” (Debra H. v Janice R., 14 NY3d at 600-601). At the heart of the Court's reasoning in Debra H. was a desire to provide a bright-line rule affording certainty and predictability to parents and children. The Court expressed concern that an equitable estoppel hearing would create protracted litigation on the issue of standing.

In this proceeding, Arriaga asserts that she has standing as a parent of the child pursuant to the doctrine of judicial estoppel. Under that doctrine, ” a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed'” … .

The concerns expressed by the Court of Appeals in Debra H. are not implicated in the present case, where Arriaga invoked the doctrine of judicial estoppel, not equitable estoppel. No hearing was required to decide whether the doctrine of judicial estoppel applies in this case, nor did the determination involve a “complicated” or “nonobjective test” (Debra H. v Janice R., 14 NY3d at 594). Just as in Debra H., whether Arriaga was adjudicated a parent of the child was “as determinable as whether there has been a second-parent adoption” (id. at 600).

Moreover, just as in second-parent adoptions, the adjudication of Arriaga as a parent of the child required the biological mother's affirmative legal consent, “as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage” (id. at 600-601). Indeed, here, Dukoff was the party who sought to have Arriaga adjudicated a parent. Although Dukoff did not consent to adjudicating Arriaga a parent of the child for the purposes of visitation rights, the biological mother in Debra H. also did not do so.  Matter of Arriaga v Dukoff, 2014 NY Slip Op 08990, 2nd Dept 12-24-14

 

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“Detained Sex Offender,” Under Article 10, Applies Equally to Lawfully and Unlawfully Detained Sex Offenders

In the course of affirming the finding that appellant was a dangerous sex offender who must be civilly confined, the Second Department noted that Article 10 of the Mental Hygiene Law, which applies to “detained sex offenders,” applies equally to lawfully and unlawfully detained sex offenders.  The court went on to briefly describe the relevant analytical criteria and proof burden:

The appellant's contention that this proceeding was “jurisdictionally flawed” because he did not meet the definition of a detained sex offender is without merit. The appellant was incarcerated upon his conviction of attempted sodomy in the first degree pursuant to Penal Law § 110.00 and former Penal Law § 130.50 at the time that this proceeding was commenced (see Mental Hygiene Law § 10.03[g][1]). The Court of Appeals has made it clear that the statutory language of Mental Hygiene Law article 10 does not distinguish between lawfully and unlawfully detained sex offenders … . * * *

A “dangerous sex offender requiring confinement” is defined under Mental Hygiene Law article 10 as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03[e]). The State must establish by clear and convincing evidence that the appellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[f]). Matter of State of New York v Abdul A, 2014 NY Slip OP 09006, 2nd Dept 12-24-14

 

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Failure to Notify Insured of Change in Coverage for Fire Insurance (In Violation of Insurance Law 3425 (d)) May Constitute a Deceptive Business Practice Under General Business Law 349

The Second Department determined that the insurer's (Quincy's) failure to notify the insured of a change in a the coverage afforded by a homeowner's policy (in violation of Insurance Law 3425 (d)) supported a cause of action for deceptive business practices under General Business Law 349. Quincy had notified the insured's broker of the change, but not the insured:

The elements of a cause of action to recover damages for deceptive business practices under General Business Law § 349 are that the defendant engaged in a deceptive act or practice, that the challenged act or practice was consumer-oriented, and that the plaintiff suffered an injury as a result of the deceptive act or practice … . ” Intent to defraud and justifiable reliance by the plaintiff are not elements of the statutory claim” … . Conduct has been held to be sufficiently consumer-oriented to satisfy the statute where it constituted a standard or routine practice that was “consumer-oriented in the sense that [it] potentially affect[ed] similarly situated consumers” … .

Here, Quincy's submissions failed to demonstrate, prima facie, that its failure to comply with the notice requirements set forth in Insurance Law § 3425(d) did not constitute a deceptive business practice. Quincy, in its submissions, admitted that it sought to change and reduce coverage by eliminating a particular endorsement to its New York homeowners' insurance policies, including the plaintiffs' insurance policy. Upon the plaintiffs' renewal of the policy, Quincy eliminated the endorsement, but failed to notify those insureds of that change in the manner prescribed by the Insurance Law. Moreover, the plaintiffs, who continued to seek full replacement costs in relation to the fire that destroyed their home, were clearly injured by the lack of notice that they were underinsured. Valentine v Quincy Mut Fire Ins Co, 2014 NY Slip Op 08984, 2nd Dept 12-24-14

 

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Supreme Court Should Not Have Denied Motion to Set Aside a Stipulation of Settlement Without a Hearing, Criteria Explained/Lower Court Properly Considered Issues Raised for the First Time in Plaintiff’s Reply Papers Because Defendant Availed Himself of the Opportunity to Oppose the Contentions at Oral Argument

The Second Department determined Supreme Court should not have denied plaintiff's motion to set aside the stipulation of settlement without a hearing.  The court explained the analytical criteria.  (It is worth noting that the Second Department found that Supreme Court properly considered matters raised for the first time in plaintiff's reply papers because the defendant availed himself of the opportunity to oppose the contentions at oral argument.):

“Marital settlement agreements are judicially favored and are not to be easily set aside” … . However, because of the fiduciary relationship existing between spouses, ” [a] stipulation of settlement 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 unjust because of the other spouse's overreaching'” … .

“To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness” … . ” [N]o actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching . . . in its execution'” … . “[C]ourts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching” … . However, generally, if the execution of the agreement is fair, no further inquiry will be made … . “[W]hile evidence that one spouse was not represented by counsel is insufficient, standing alone, to find overreaching, it is a significant consideration when determining whether the parties entered into the stipulation freely and fairly” … . “[C]ourts have thrown their cloak of protection [over] separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity” … . Jon v Jon, 2014 NY Slip Op 08961, 2nd Dept 12-24-14

 

Child Not Yet Born When Father Neglected Siblings Was Properly Found to Be Derivatively Neglected

The Second Department determined that a child who had not been born at the time father was found to have neglected two siblings was properly determined to be derivatively neglected by the father:

“In determining whether a child born after underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists'” … . If such a showing is made, ” the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future'” … .

Here, the conduct which formed the basis for the Family Court's finding that the father neglected the subject child's two older siblings was “so proximate in time to [this proceeding] that it can reasonably be concluded that the condition still exists” …, and the father failed to complete the programs mandated by the prior order of disposition relating to the older siblings … . Thus, ACS [Administration for Child Services] demonstrated that the father derivatively neglected the subject child, and because the father ” failed to present any evidence to either rebut [ACS's] prima facie case or establish that the condition leading to [the] neglect finding as to the other child[ren] no longer existed,'” the derivative neglect finding was proper … . Matter of Madison B…, 2014 NY Slip Op 08991, 2nd Dept 12-24-14

 

Although Not Raised by the Defendant Below, the Appellate Court Vacated the Default Pursuant to CPLR 317

The Second Department determined plaintiff's motion for leave to file a default judgment was properly denied and defendant was properly allowed to serve a late answer.  Although the defendant failed to explain why it failed to file the correct address for service of process with the Secretary of State, there was no question that the defendant did not receive notice of the summons in time to defend and did nothing to deliberately avoid service.  The Second Department used CPLR 317 as its basis for vacating the default, even though that ground was not cited by the defendant below:

Although the defendant did not cite to CPLR 317 in opposition to the plaintiffs' motion, under the circumstances of this case, this Court may consider CPLR 317 as a basis for vacating the default (see CPLR 2001…). CPLR 317 permits a defendant who has been “served with a summons other than by personal delivery” to defend the action upon a finding by the court that the defendant “did not personally receive notice of the summons in time to defend and has a meritorious defense” (CPLR 317…). Here, the record reveals that neither the defendant nor its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend itself against this action … . There is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process, especially since the plaintiffs had knowledge of the defendant's actual business address … . In addition, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Gershman v Midtown Moving & Storage Inc, 2014 NY Slip Op 08959, 2nd Dept 12-24-14

 

Supreme Court Erred In Refusing to Appoint a Guardian—However, Petitioner Was Not the Appropriate Choice for the Guardian

Reversing Supreme Court, the Second Department determined the appointment of a guardian for Mae R, who was 91, was necessary. The Second Department further found that the petitioner was not the appropriate choice for a guardian.  [In addition, the court noted that, in absence of bad faith, it was an abuse of discretion for Supreme Court to order petitioner to pay the fees for the court evaluator and appointed attorney.]  The court explained the relevant law and the facts:

Under Mental Hygiene Law article 81, a court may appoint a guardian for a person or a person's property upon determining, by clear and convincing evidence, that the requirements of article 81 have been met (see Mental Hygiene Law §§ 81.02[a][2], 81.12[a]…). Before a court may appoint a guardian, it must determine (1) that a guardian is “necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person”; and (2) that “the person agrees to the appointment, or that the person is incapacitated” within the meaning of the statute (Mental Hygiene Law § 81.02[a][1], [2]…). The statute specifies the relevant considerations and issues in the determination of the need for a guardian, and expressly requires that the court consider the report of the court evaluator (see Mental Hygiene Law § 81.02[a]) and the “sufficiency and reliability of available resources” that may satisfy the needs of the proposed ward without requiring the appointment of a guardian (Mental Hygiene Law § 81.02[a][2]…). Even where the court finds that appointment of a guardian is necessary, it is not required to appoint the person proposed by the petitioner … .

Here, contrary to the Supreme Court's determination, which rejected the recommendation of the court evaluator, the petitioner demonstrated by clear and convincing evidence that Mae R. is an incapacitated person as defined in Mental Hygiene Law § 81.02(b). The evidence at the hearing established that Mae R., a 91-year-old woman who presently resides by herself in her two-family home in Queens, is likely to suffer harm because she is unable to provide for her personal needs and manage her property, and does not adequately understand and appreciate the nature and consequences of her limited abilities (see Mental Hygiene Law § 81.02[b][1], [2]…).

The evidence established, among other things, that, until recently, Mae R. managed her person and property with the daily assistance of a tenant who previously resided with her, and Mae R.'s grandniece, both of whom testified at the hearing and were interviewed by the court evaluator. The evidence further established that, subsequently, Mae R. executed a health care proxy and power of attorney in favor of a neighbor, and a last will and testament bequeathing her entire estate to this neighbor, who procured the attorney who drafted the alleged directives and testamentary instrument. At an interview with the court-appointed evaluator, however, Mae R. did not recall issuing the directives and testamentary instrument. Indeed, she told the court-appointed evaluator that she wished to leave her estate to family members. Further, witnesses at the hearing had heard Mae R. say that the same neighbor “makes me say things I don't mean and then I forget.” Matter of Loftman …, 2014 NY Slip Op 08998, 2nd Dept 12-24-14

 

If the Accident Was Staged by the Insured, the Insurer Would Not Be Required to Cover a Party Injured In the Collision, Even If that Party Was Not Involved in the Staging

Reversing Supreme Court, the Second Department determined that the insurer could disclaim coverage if the accident was staged by the insured (Robinson), even with respect to a party not shown to have been involved in the staging (Pontoon).  Here Robinson's vehicle side-swiped the vehicle in which Pontoon was a passenger:

Robinson's vehicle was covered under an automobile liability insurance policy issued by the proposed additional respondent Government Indemnity Company (hereinafter GEICO). Pontoon sought coverage for the incident from GEICO. GEICO disclaimed coverage on the ground, inter alia, that the collision was staged, and thus resulted from an intentional act. Pontoon then sought arbitration under the uninsured motorist provision of Nelson's policy, which was issued by Nationwide General Insurance Company (hereinafter Nationwide). Nationwide initiated this proceeding under CPLR article 75 seeking to permanently stay the arbitration on the ground that GEICO was required to provide coverage for Pontoon's injuries, and thus Robinson was not “uninsured.” * * *

The referee incorrectly concluded that GEICO was required to submit evidence that Pontoon was involved in staging the collision in order to support a disclaimer of coverage. Contrary to the referee's conclusion, if GEICO can prove that the collision was staged by Robinson, its insured, it would not be obligated to provide coverage under the policy regardless of whether Pontoon was an innocent third party … . Nationwide Gen Ins v Pontoon, 2014 NY Slip OP 09001, 2nd Dept 12-24-14

 

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2 1/2 Year Delay In Correcting Location of the Slip and Fall Described in the Notice of Claim Prejudiced the Defendant/Motion for Leave to File an Amended Notice Properly Denied

The Second Department determined plaintiffs' motion to amend the notice of claim to change the location of the accident (slip and fall on ice and snow) was properly denied. Although the error was not made in bad faith, the 2 1/2 year delay in correcting the error prejudiced the defendant town agency:

Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby … . Here, while there is no indication that the error regarding the location of the subject accident in the original notice of claim was made in bad faith, the record demonstrates prejudice to the respondent, the defendant Town of Babylon Industrial Development Agency (hereinafter the Agency), as a result of the error. The original notice of claim misidentified the location of the accident as the “walkway/pathway” in front of 595 Smith Street, East Farmingdale, rather than the correct location, the “roadway/parking lot” at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill of particulars, photographs of the purported accident location, supplemental bill of particulars, and even a second supplemental bill of particulars served almost 2½ years after the accident, all of which continued to misidentify the accident location, failed to dissipate the prejudice to the Agency in its attempt to conduct a timely and meaningful investigation … . The plaintiffs contend that the Agency's ability to conduct a physical examination of the snow and ice condition that allegedly caused the injured plaintiff's accident was not affected by the error in the notice of claim, since that condition undoubtedly had changed by the time the original notice was served. However, the record reveals that the Agency's ability to investigate other aspects of the occurrence and to interview witnesses was hampered by the plaintiffs' delay of more than 2½ years in serving a third supplemental bill of particulars identifying the correct accident location and in moving for leave to serve an amended notice of claim … . Torres v Town of Babylon, 2014 NY Slip Op 08901, 2nd Dept 12-24-14

 

Emergency Doctrine Does Not Apply Where Party Invoking It Contributed to the Creation of the Emergency

The Second Department affirmed Supreme Court's ruling that the emergency doctrine did not apply to the defendant (Smith). Defendant crossed over the grassy median from the southbound lane striking plaintiff's vehicle in the northbound lane. Defendant argued that the emergency doctrine applied because defendant's vehicle was struck from behind, causing it to leave its lane of traffic.  The Second Department determined the emergency doctrine did not apply because defendant contributed to the rear-end collision by slowing down without signaling at a time when defendant was aware the vehicle behind was tail-gating:

…[T]he defendants failed to raise a triable issue of fact as to whether the emergency doctrine applied … . The emergency doctrine is not a defense available to the defendants because the emergency condition was partially created by Smith's disregard of existing traffic conditions … . Smith had a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision … . At his deposition, Smith admitted that he was aware that the unidentified vehicle had been tailgating him for about 10 to 20 seconds. Despite being aware that he was being tailgated on a highway, he deliberately slowed his vehicle by disengaging the cruise control without proper signaling. Then, the unidentified vehicle hit the rear of his vehicle. Under these circumstances, it was foreseeable that slowing down without proper signaling could result in a rear-end collision. Accordingly, as Smith contributed to the creation of the emergency situation, the emergency doctrine is not applicable. Pearson v Northstar Limousine Inc, 2014 NY Slip Op 08968, 2nd Dept 12-24-14

 

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