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Elements of Civil and Criminal Contempt Explained

In affirming the denial of mother’s motion to hold father in civil and criminal contempt for failing to exercise his right to visitation, the Second Department explained the elements of each:

To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, ” (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” (…see Judiciary Law § 753[A]). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party … .

In a criminal contempt proceeding, proof of guilt must be established beyond a reasonable doubt … . “The purpose of criminal contempt (see Judiciary Law § 750) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed since the right of the private parties to the litigation is not the controlling factor'” … . “However, [a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may [*2]be rebutted with evidence of good cause for noncompliance'” … . Matter of Figueroa-Rolon v Torres, 2014 NY Slip Op 06584, 2nd Dept 10-1-14

 

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“Substantial Evidence” Standard of Court Review Explained

The Second Department explained the “substantial evidence” standard of court review of an administrative agency’s determination after a disciplinary hearing:

Substantial evidence “is related to the charge or controversy and involves a weighing of the quality and quantity of the proof”; the term “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . “Where there is conflicting evidence or different inferences may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . Matter of Sullivan v County of Rockland, 2014 NY Slip Op 06593, 2nd Dept 10-1-14

 

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Alleged Misrepresentations Were Not Collateral or Extraneous to the Contract—Fraud Cause of Action Will Not Lie

Re: an elevator-maintenance contract, the Second Department explained when a fraud cause of action must be dismissed in the context of a breach of contract action:

We find unpersuasive the plaintiff’s contention that the Supreme Court erroneously granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the fifth cause of action, which alleged fraud. “Where a claim to recover damages for fraud is premised upon an alleged breach of contractual duties, and the allegations with respect to the purported fraud do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie” … . Here, the complaint and the accompanying affidavits alleged that the individual defendants made knowingly false statements that the subject elevators would be promptly repaired and properly maintained, and that any governmental violations that were issued with regard to them would be resolved and closed. However, the parties’ agreement, as referenced by the defendants in support of their motion, “conclusively established that the alleged fraudulent misrepresentations at issue were not collateral or extraneous to the contract. Rather, the alleged misrepresentations amounted only to a misrepresentation of the intent or ability to perform under the contract” … . Renaissance Equity Holdings LLC v Al-An El Maintenance Corp, 2014 NY Slip Op 06570, 2nd Dept 10-1-14

 

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Annuity Purchased as Part of Settlement After Husband’s On-the-Job Accident Is Marital Property—Husband’s Pension Is Marital Property to the Extent It Represents Deferred Compensation—Wife Did Not Demonstrate Entitlement to Appreciation of Marital Residence (Which Was Husband’s Separate Property)

After noting that the appellate court has the same powers as the trial court in rendering a judgment in a matrimonial action, the Second Department determined that an annuity purchased pursuant to a settlement agreement stemming from the on-the-job injury to the plaintiff-husband should have been deemed marital, not separate, property.  The Second Department further determined that plaintiff’s pension was marital property subject to equitable distribution, and defendant did not demonstrate she was entitled to any portion of the appreciation of the marital residence (which was plaintiff’s separate property):

Although a settlement award emanating from a personal injury action commenced by the parties is partially the separate property of each party named in such action (…Domestic Relations Law § 236[B][1][d][2]), here, the parties’ conduct converted the separate property of the settlement into marital property. Specifically, the parties’ agreement to a settlement term that allowed the obligor or its successors to purchase an annuity, which provided for a right of survivorship to each party, to effectuate the terms of the settlement, manifests the parties’ intent to transfer the character of the property of each arising out of that settlement from separate to marital. * * *

With respect to the equitable distribution of this marital asset, “it is important to note that there is no requirement that the distribution of each item of marital property be on an equal basis” … . Here, equity dictates that the plaintiff should receive most of the annuity, as he is permanently disabled and unable to earn an income now or in the future, whereas the plaintiff is employed and has future income earning capacity. * * *

The Supreme Court also erred in finding that the plaintiff’s pension payments constituted separate property not subject to equitable distribution (cf. Domestic Relations Law § 236[B][5][b]). In New York, “pension benefits or vested rights to those benefits, except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property” … . To the extent that a disability pension constitutes compensation for personal injuries, it is considered separate property not subject to equitable distribution … . However, to the extent that a disability pension represents deferred compensation, it is subject to equitable distribution … . Thus, here, the defendant is entitled to an equitable share of the marital portion of so much of the plaintiff’s pension as represents deferred compensation … . * * *

…[T]he defendant failed to provide any evidence tending to show an appreciation in the value of the marital residence due to her contributions that would entitle her to an equitable share of the increase in value of the marital property (see Domestic Relations Law § 236[B][1][d][3]…). The only evidence of the value of the marital residence was the plaintiff’s net worth statement, which indicated that he purchased it for $35,000. The defendant offered no evidence to establish the value of the home at the time of the commencement of the divorce action or whether it had appreciated in value during the marriage. Rizzo v Rizzo, 2014 NY Slip Op 06305, 2nd Dept 9-24-14

 

Supreme Court Properly Imputed Income to Husband (Higher than that Reported by Husband) in Awarding Pendente Lite Maintenance and Child Support

The Second Department determined Supreme Court properly imputed income to the defendant-husband to determine pendente lite awards of maintenance and child support:

…Supreme Court providently exercised its discretion in imputing income of $200,000 per year to the defendant for the purposes of computing pendente lite awards of maintenance and child support. In determining a party’s maintenance or child support obligation, a court need not rely upon the party’s own account of his or her finances … . A court is justified in imputing income to a spouse when it is shown that the marital lifestyle was such that, under the circumstances, there was a basis for the court to conclude that the spouse’s actual income and financial resources were greater than what he or she reported on his or her tax returns … . The court may impute income to establish the party’s support obligation (see Domestic Relations Law §§ 240 [1-b][b][5][iv]; 236[B][5-a][b][4][a]…). Here, the Supreme Court, in effect, found the defendant’s account of his own finances was not believable, and was justified in imputing income to him that was far higher than he reported… . Weitzner v Weitzner, 2014 NY Slip Op 06303, 2nd Dept 9-24-14

 

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The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

To establish that the continuous treatment doctrine applies, a plaintiff is ” required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice … . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

 

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Criteria for Judgment as a Matter of Law and Finding a Verdict to be Against the Weight of the Evidence Explained

In the context of a personal injury action, where the issue was whether plaintiff’s injury was “serious” within the meaning of Insurance Law 5102 (d), the Second Department explained the criteria for a judgment as a matter of law pursuant to CPLR 4401 and finding a verdict to be against the weight of the evidence.  The Second Department affirmed the denial of defendant’s post-verdict motions but found the damages awarded by the jury to be excessive:

” To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant'” … . In considering the motion for judgment as a matter of law, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … .  * * *

A jury verdict is contrary to the weight of the evidence when the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence … . Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion, and reject that of another expert … . “Issues of credibility are for the jury, which had the opportunity to observe the witnesses and the evidence. Its resolution is entitled to deference” … . “[A] successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence” … .  Cicola v County of Suffolk, 2014 NY Slip Op 06293, 2nd Dept 9-24-14

 

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No Manifest Necessity for Declaring a Mistrial Over Defendant’s Objection–Double Jeopardy Barred Retrial

The Second Department determined there was no “manifest necessity” for the trial court’s declaring a mistrial (over defendant’s objection) and therefore retrial was precluded.  The jury informed the court it had reached a verdict one count but could not reach a verdict on the remaining two counts. The defendant asked the court to accept a partial verdict and the court refused.  Subsequently a juror asked to be excused due to an emergency.  The defendant, at the court’s urging, agreed to excuse the juror and renewed his request for a partial verdict.  The request was again refused and the defendant did not agree to the substitution of an alternate juror.  The court, on its own motion, declared a mistrial. When the court ruled defendant could be retried on the two counts on which the jury could not agree, defendant brought an application for prohibition:

Prohibition is the traditional remedy where a defendant seeks protection against double jeopardy … and the writ lies in this case. * * *

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial … . However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial … . ” Manifest necessity’ means a high degree of necessity’; the reasons underlying the grant of a mistrial must be necessitous, actual and substantial'” … . Even if the reasons for declaring a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to declaring a mistrial … .

Here, the trial court failed to explore all appropriate alternatives before declaring, on its own motion, a mistrial … . Accordingly, there was no manifest necessity for the declaration of a mistrial and, thus, retrial on counts two and three of the indictment is precluded.  Matter of Gentil v Margulis, 2014 NY Slip Op 06314, 2nd Dept 9-24-14

 

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Election of Remedies Provision in Labor Law 740 Precluded Retaliation Action Based Upon an Alleged Violation of NYC Administrative Code

The Second Department determined plaintiffs’ action for retaliation in employment in violation ov the NYC Administrative Code was barred by the election of remedies provision of Labor Law 740 (7):

[The Administrative Code-based] claim is barred by the election of remedies provision contained in Labor Law § 740(7). Labor Law § 740(7) provides that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” The waiver applies to causes of action arising out of or relating to the same underlying claim of retaliation … .

The plaintiffs in this action alleged retaliation pursuant to Labor Law § 740 in a prior action … . The claim asserted here pursuant to Administrative Code of the City of New York § 8-107 arises out of and relates to the same underlying claim of retaliation as asserted in the prior action. It is, therefore, barred by the Labor Law § 740(7) election of remedies provision … . The waiver may not be avoided by amending the complaint to withdraw the section 740 claim, as the plaintiffs did in the prior action … . Charite v Duane Reade Inc, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

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Pulling Defendant from Inside His Home for Warrantless Arrest Violated the Fourth Amendment

The Second Department determined that a new trial was required because defendant’s statement should have been suppressed.  The police pulled the defendant from inside his home to arrest him without a warrant, a violation of the Fourth Amendment.  The Second Department noted, however, that the trial court did not err in refusing the suppress evidence of a post-arrest lineup identification:

Here, the police knocked on the defendant’s door at approximately 6:50 a.m. When the defendant answered the door he appeared to be “half asleep,” and was naked from the waist down. He only partially opened the door, was never in full view of the police, and never crossed the threshold of his apartment. When the police directed the defendant to step fully into view, the defendant instead attempted to shut the door, trapping a detective’s arm as the detective tried to keep the door from closing. After law enforcement officials successfully pushed the door open, they pulled the defendant from the area behind the door into the public hallway, where he was then arrested.

Under the discrete circumstances of this case, where the police officers crossed the threshold into the defendant’s apartment, pulled him into the hallway, and arrested him without a warrant, the defendant’s Fourth Amendment rights were violated … . People v Riffas, 2014 NY Slip Op 06333, 2nd Dept 9-24-14

 

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