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Father’s Consent to Adoption Not Required

In a proceeding to terminate the mother’s parental rights, the Second Department affirmed Family Court’s determination that the father’s consent to the adoption of the child was not required:

In this proceeding pursuant to Social Services Law § 384-b to terminate the mother’s parental rights on the ground of permanent neglect, the Family Court’s determination that the father’s consent to the adoption of the subject child was not required was supported by clear and convincing evidence … . The father failed to meet his burden of establishing that he maintained substantial and continuous or repeated contact with the child through the payment of support and either regular visitation or other communication with the child … . Matter of Tanay RS …, 2014 NY Slip Op 08032, 2nd Dept 11-19-14

 

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Plaintiff’s Deposition Testimony Stating that She Did Not Know the Cause of Her Fall Was Fatal to the Action—the Deposition Testimony Was Not Overcome by a “Feigned Issue” Subsequently Raised in an Affidavit or by Expert Opinion Evidence Alleging the Cause of the Fall

The Second Department determined that plaintiff’s deposition testimony that she did not look down and did not know the cause of her fall was fatal to the action.  The court determined that plaintiff’s affidavit in opposition to the summary judgment motion stated a “feigned issue” designed to avoid the consequences of her deposition testimony.  In addition, the expert affidavit alleging the cause of the fall was a depression could not overcome the plaintiff’s ignorance of the cause of the fall:

Here, the defendant established its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, in which she admitted to not knowing what her foot had been caught on, or what caused her to fall. Notably, the plaintiff testified that, as she exited a pharmacy, she walked straight, looking forward, and did not look down … .

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . The deposition testimony of the plaintiff’s friend, who was present when the accident occurred, also failed to raise a triable issue of fact, as this witness was unable to identify what caused the plaintiff to fall. The plaintiff also submitted an affidavit of an expert who alleged that the proximate cause of the plaintiff’s injuries was a depression of the walkway pavers, which created a one-inch height difference between the pavers and the abutting concrete curb, thereby causing a tripping hazard. However, since the plaintiff did not know what caused her to fall, it would be speculative to assume that this alleged condition proximately caused her fall … . Rivera v J Nazzaro Partnership LP, 2014 NY Slip OP 08001, 2nd Dept 11-19-14

 

Unwed Birth Father’s Consent for Adoption Properly Required

The Second Department affirmed Family Court’s ruling that the unwed birth father’s consent for adoption was required:

There is no basis to disturb the Family Court’s determination that the unwed birth father was a person whose consent was required in order for the child to be adopted. The Family Court found that during the six-month period prior to the subject child’s placement with the appellants upon her birth, the unwed birth father promptly asserted his interest in the child, manifested his ability and willingness to assume custody of the child, and provided financial and moral support to the birth mother … . Matter of Baby Girl N …, 2014 NY Slip Op 08028, 2nd Dept 11-19-14

 

Nonparents Did Not Demonstrate Standing to Bring Petition to Adopt

The Second Department determined the nonparents’ petition to adopt was properly denied:

“As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances” … . The burden of proof is on the nonparent to prove such extraordinary circumstances … . Absent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered … . Here, the Family Court properly determined that the nonparent petitioners, whose petition to adopt the subject child was correctly denied …, failed, in this custody proceeding, to allege the existence of extraordinary circumstances. Accordingly, the Family Court properly granted the father’s motion to dismiss their custody petition for lack of standing … . Matter of Santiago v Henderson, 2014 NY Slip Op 08033, 2nd Dept 11-19-14

 

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Individual Defendants’ Ties to New York, Including Business Activities in New York, Were Not Sufficient to Afford New York Jurisdiction, Pursuant to CPLR 302, Over a Lawsuit Stemming from a Personal Injury in New Jersey—CPLR 301, Which Affords New York Courts Jurisdiction Over Corporations Doing Business in New York, Does Not Extend to Individuals Doing Business in New York

The Second Department reversed Supreme Court’s finding that New York courts had jurisdiction over plaintiff’s personal injury action.  Plaintiff was injured by an allegedly defective saw provided by the defendants while doing work for defendants at the defendants’ home in New Jersey.  Jurisdiction pursuant to CPLR 302 was lacking because there was no real connection between the the defendants’ activities in New York (they ran a church in New York) and the personal injury action.  Jurisdiction pursuant to CPLR 301 was lacking because CPLR 301 does not apply to individuals, as opposed to corporations, doing business in New York:

In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court must determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction … .

The Court of Appeals has interpreted the second prong of the jurisdictional inquiry to require that, in light of all the circumstances, there must be an “articulable nexus” … , between a defendant’s in-state activity and the claim asserted … . Although “causation is not required,” the Court of Appeals has stated that “at a minimum [there must be] a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former” … . “[W]here at least one element arises from the New York contacts, the relationship between the business transaction and the claim asserted supports specific jurisdiction under the statute” … .

Here, the relationship between the causes of action asserted in the complaint and the [defendants’] activities within New York were too insubstantial to warrant a New York court’s exercise of personal jurisdiction over them pursuant to CPLR 302(a)(1). * * *

In contrast to the common-law approach to corporations, the common law, as developed through case law predating the enactment of CPLR 301, did not include any recognition of general jurisdiction over an individual based upon that individual’s cumulative business activities within the State … . Since the enactment of CPLR 301 did not expand the scope of the existing jurisdictional authority of the courts of the State of New York, that section does not permit the application of the “doing business” test to individual defendants … . Accordingly, contrary to the plaintiff’s contention, since the [defendants] were served with process in New Jersey, the Supreme Court was not authorized to exercise personal jurisdiction over them pursuant to CPLR 301, based on their cumulative individual business activities within the State. Pichardo v Zayas, 2014 NY Slip Op 07639, 2nd Dept 11-12-14

 

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Town Board Is Not a Necessary Party In an Action Against the Town—Acts of the Town Board Under Statutory Authority Are the Acts of the Town—Court’s Power to Join a Necessary Party Sua Sponte Noted (Not Properly Exercised Here)

The Second Department explained that, in a declaratory judgment action against a town challenging a local law, the town board is not a necessary party:

A “court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … . “In a matter seeking a declaratory judgment challenging a legislative act, the legislative body that enacted the challenged law or ordinance is a necessary party” … .

In this declaratory judgment action against the Town of Huntington, challenging a Local Law enacted by the Town Board of the Town of Huntington (hereinafter the Town Board), the Supreme Court, sua sponte, directed the joinder of the Town Board as a defendant on the ground that it is a necessary party without which the action cannot proceed. However, a town board “shall be vested with all the powers of such a town” (Town Law § 60[1]) and “cannot and does not exist separately and independently from the town of which it is the governing body . . . [T]he acts of a town board when performed under statutory authority are the acts of the town” … . Accordingly, as the Town is a party defendant in this action, it was unnecessary for the court to have directed the joinder of the Town Board as a defendant … . Dish Realty LLC v Town of Huntington, 2014 NY Slip Op 07616, 2nd Dept 11-12-14

 

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The Proper Vehicle to Address Fraud Which Is Alleged to Have Tainted a Completed Proceeding Is a Motion to Vacate the Judgment, Not the Institution of a New Plenary Action

The Second Department noted that the remedy for addressing fraud in a completed action is a motion to vacate the judgment in that action, not a new plenary proceeding:

“Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence” … . The “plaintiff’s remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the . . . judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action” … . Stewart v Citimortgage Inc, 2014 NY Slip Op 07648, 2nd Dept 11-12-14

 

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Procedure for Determining a Pre-Answer Motion to Dismiss a Declaratory Judgment Action Explained

In the context of an action for a declaratory judgment concerning the legality of the collective bargaining agreement (re: the waiver of seniority rights), the Second Department explained how a pre-answer motion to dismiss pursuant to CPLR 3211 (a)(7) [failure to state a cause of action] should be considered:

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . “Thus, where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'” … . A court may reach “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly”… .  Bregman v East Ramapo Cent Sch Dist, 2014 NY Slip Op 07610, 2nd Dept 11-12-14

 

Criteria for a Change of Venue Not Met—Party Seeking Change Must First Demonstrate Existing Venue Is Improper

Reversing Supreme Court, the Second Department held that defendant’s motion to change venue should have been denied.  The court explained the analytical criteria:

“In the context of determining the proper venue of an action, a party may have more than one residence” … . Under CPLR 503(d), the county of an individual’s principal office is a proper venue for claims arising out of that business (see CPLR 503[d]…). Here, the plaintiff seeks to recover damages for medical malpractice allegedly committed by, among others, the defendant Jung Lack Lee in his capacity as a medical doctor. Accordingly, the county in which that defendant maintains his principal office is a proper venue in this case.

To prevail on a CPLR 510(1) motion to transfer venue, a defendant bears the burden of demonstrating that the plaintiff’s choice of venue was improper on the day the action was commenced, and that the defendant’s choice of venue is proper (see CPLR 511[b]…). Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper … . Here, the defendants failed to establish that Kings County was improper … . Accordingly, the Supreme Court should have denied the defendants’ motions to transfer venue and granted that branch of the plaintiff’s cross motion which was to retain venue in Kings County. Young Sun Chung v Kwah, 2014 NY Slip Op 07656, 2nd Dept 11-12-14

 

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Procedure for Handling a Motion to Dismiss for Failure to State a Cause of Action When Documentary Evidence Is Submitted in Support of the Motion Explained—Attorney Discharged For Cause Is Not Entitled to “Quantum Meruit” Attorney’s Fees

In affirming the dismissal of plaintiff’s complaint, the Second Department explained the relevant analysis when documentary proof is submitted by a defendant in connection with a motion to dismiss for failure to state a cause of action pursunt to CPLR 3211(a)(7).  The action was brought by an attorney who had been discharged for cause by his clients prior to the settlement of a personal injury action:

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Where, however, a defendant has submitted evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, . . . dismissal should not eventuate” … . Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action … . * * *

A client has the right to discharge his or her attorney at any time … . While an attorney who is discharged without cause before the completion of services may recover the reasonable value of his or her services in quantum meruit, an attorney who is discharged for cause is not entitled to any compensation or lien … . Here, the court held a hearing pursuant to 22 NYCRR 603.13(b) with respect to the plaintiff’s cross motion for attorney’s fees. The court determined that the plaintiff was properly discharged for cause, and, therefore, was not entitled to recover in quantum meruit. Siskin v Cassar, 2014 NY Slip Op 07646, 2nd Dept 11-12-14

 

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