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Petition for the Opportunity to Ballot Not Demonstrated to Have Been Permeated by Fraud

The Second Department determined that a petition for the opportunity to ballot was not so permeated with fraud to justify granting a petition to invalidate it:

As a general rule, a petition for an opportunity to ballot will be invalidated on the ground of fraud only if there is a showing that the entire petition is permeated with fraud … or, if not permeated with fraud, where a potential candidate who stands to benefit from the validation of the petition for an opportunity to ballot has participated in or is chargeable with knowledge of the fraud … .

Here, the petitioners did not sustain their burden of establishing by clear and convincing evidence that the totality of the instances of forged signatures on the subject petition for an opportunity to ballot rose to the level at which it could be said that the petition was permeated with fraud … . Matter of Steinert v Daly, 2014 NY Slip Op 04206, 2nd Dept 6-11-14

 

Priority in Custody Disputes Given to Party Initially Awarded Custody

The Second Department, in affirming Family Court’s denial of a motion to modify a stipulated custody arrangement, noted that priority is given to the parent who was initially awarded custody:

“A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child’s best interests” … . The best interests of the child are determined by a review of the totality of the circumstances … . In this regard, the court should consider whether the alleged changed circumstances indicate that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement … .

” Priority in custody disputes should usually be given to the parent who was first awarded custody . . . because this policy assures stability in the child’s life'” … . “Thus, [w]hen . . . there is no indication that a change of custody will result in significantly enhancing the child’s welfare, it is generally considered in the child’s best interests not to disrupt his [or her] life'” … . McCance v De Witt, 2014 NY Slip Op 04175, 2nd Dept 6-11-14

 

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Tax Assessment Reductions Can Be Sought Solely through a Tax Certiorari Proceeding Under the Real Property Tax Law, Not Through an Article 78 Proceeding

The Second Department determined the procedure under the Real Property Tax Law (RPTL) was the only avenue available to petitioner to seek a reduction of tax assessments.  Petitioner had successfully challenged the tax assessments for the 2006/2007 tax year and then sought a reduction for the following year in an Article 78 proceeding.  The Second Department determined petitioner should have sought reductions for all the relevant tax years within the time limits of RPTL 702(2) and could not use an Article 78 proceeding to collaterally attack the assessment:

“Ordinarily, the proper method for challenging excessive or unlawful real property tax assessments is by the commencement of a tax certiorari proceeding pursuant to article 7 of the Real Property Tax Law” … . Such a proceeding is properly commenced after exhaustion of the administrative grievance remedies, and within 30 days after the filing of the final assessment roll (see RPTL 702[2]…). An “excessive assessment” subject to review pursuant to RPTL article 7 includes an assessment of a special assessing unit that fails to comply with the limitations on increases in assessed value set forth in RPTL 1805 (see RPTL 701[4][d]; 706[1]…).

Collateral attacks on assessments are proper where the jurisdiction of the taxing authority is challenged, the tax itself is claimed to be unconstitutional …, or the challenge is to “the method employed in the assessment of several properties rather than the overvaluation or undervaluation of specific properties” … . None of these exceptions to the exclusive applicability of RPTL article 7 are present here, since the petitioner challenged, as excessive, the assessments of specific parcels of property by virtue of the appellants’ failure to comply with RPTL 1805 (see RPTL 701[4][d]).

The petitioner contends that, nonetheless, the commencement of a CPLR article 78 proceeding within the time provided for by CPLR 217 is the proper vehicle by which to compel the requested transition assessments because recalculation of the 2007/2008 assessments only became necessary after the assessments for the previous tax year were reduced by the Supreme Court and that reduction was affirmed pursuant to our decision and order in Matter of Rainbow Diner v Board of Assessors (71 AD3d 901). We reject this contention, since the petitioner was required to timely exhaust administrative remedies applicable to tax certiorari proceedings, and its challenge was subject to the limitations period of RPTL 702(2). Matter of Jonsher Realty Corp/Melba Inc v Board of Assessors, 2014 NY Slip Op 04195, 2nd Dept 6-11-14

 

Suspended Judgment Should Not Have Been Granted in Termination-of-Parental-Rights Proceeding

The Second Department, over a partial dissent, determined Family Court should not have granted a suspended judgment in a proceeding for the termination of parental rights:

After a dispositional hearing on a petition to terminate parental rights, a court may dismiss the petition, terminate parental rights and commit guardianship to the agency, or suspend judgment for a period of up to one year (see Family Ct Act §§ 631, 633[b]). “A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords a brief grace period designed to prepare the parent to be reunited with the child'” … . Although this disposition provides a parent with a “second chance,” it is appropriate only where it is also in the best interests of the children … . A suspended judgment is not appropriate where a parent has failed to gain insight into the problems which led to the children’s removal in the first instance … . Moreover, to warrant a suspended judgment, “a parent must demonstrate that progress has been made to overcome the specific problems that led to the removal of the children. Mere attempts are not sufficient” … . Matter of Chanel C, 2014 NY Slip Op 04226, 2nd Dept 6-11-14

 

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Mother’s Failure to Seek Immediate Medical Assistance for Child Fatally Injured by Her Boyfriend Supported a Severe Abuse Finding and a Derivative Severe Abuse Finding—Amendment to Family Court Act 1051 (e), Removing the “Diligent Efforts” Requirement, Imposed Retroactively to Support Severe Abuse Finding

The Second Department determined an amendment to Family Court Act 1051 (e) could be applied retroactively to support a finding of severe abuse against mother in an article 10 proceeding.  Although the injuries to the child (Anniyah) were inflicted by the mother’s boyfriend, the mother failed to seek immediate medical care and the child died.  The instant proceedings were derivative abuse proceedings involving a sibling (Amira L):

A parent who stands by while others inflict harm may be found responsible for that harm (see Family Ct Act § 1012[e][ii]). And, derivative findings of abuse may be “predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well” … . Accordingly, “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” (Family Ct Act § 1046[a][i]… ). Thus, in this proceeding regarding the subject child, Amirah L., proof of the mother’s acts and omissions that ultimately resulted in Anniyah’s death were admissible. * * *

When the fact-finding hearing was held in this case, the Family Court Act did not permit a finding of severe abuse solely on the element of the mother’s conduct (see Social Services Law § 384-b[8][a][i]), but also required a finding as to ACS’s “diligent efforts” or excuse from exercising “diligent efforts” (see Social Services Law § 384-b[8][a][iv]). During the pendency of this appeal, however, the Legislature amended Family Court Act § 1051(e), so that a “diligent efforts” finding is no longer a required element of a finding of severe abuse in the context of a Family Court Act article 10 proceeding (see L 2013, ch 430, § 1; cf. Social Services Law § 384-b[8]). The statutory amendment may be applied retroactively in this case in light of the nature and purpose of the amendment, the Legislature’s expression of urgency in its application, and the absence of any due process violation to the mother in retroactive application …

Accordingly, upon our finding that clear and convincing evidence at the fact-finding hearing established that the mother acted recklessly, under circumstances evincing a depraved indifference to Anniyah’s life, and thereby caused Anniyah’s death, we find that the mother severely abused Anniyah and derivatively severely abused the subject child, Amirah L. Matter of Amirah L, 2014 NY Slip Op 04198, 2nd Dept 6-11-14

 

Mother’s Request to Relocate Properly Granted

The Second Department determined mother had made a sufficient showing to justify relocating with her child to Michigan, where she could afford an apartment based upon her disability payments alone.  The court explained the operative analytic principles:

“When reviewing a custodial parent’s request to relocate, the court’s primary focus must be on the best interests of the child” … . “Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child’s best interests” … . “Although each custodial parent’s request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the [child] and each parent, the impact of the move on the quantity and quality of the [child’s] future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the [child] may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the [child] through suitable visitation arrangements” … . In relocation determinations, this Court’s authority is as broad as that of the hearing court … . Thus, a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record … . Ortiz v Ortiz, 2014 NY Slip Op 04202, 2nd Dept 6-11-14

 

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Where It Is Possible Jurors Relied On an Illegal Ground a General Verdict Must Be Set Aside, Even If Alternative Legal Grounds Were Provided to the Jury

The Second Department determined that the inclusion on the verdict sheet of an offense that was not a designated felony under Mental Hygiene Law 10.03 (f) warranted an new trial, even though no objection was raised:

Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review … . However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant’s failure to object does not bar our review of the issue in the exercise of discretion … . At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07[d]). “It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose” … . “Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground” … . Matter of State of New York v Todd L, 2014 NY Slip Op 04205, 2nd Dept 6-11-14

 

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Decedent’s Statements Admissible Evidence of Pain and Suffering/Damages for Loss of Household Services Explained

The Second Department, in a case where medical malpractice was conceded, determined certain statements made by the decedent were admissible as excited utterances or present sense impressions.  In addition, the damages related to economic loss where decedent was not employed outside the home and devoted 20 hours per week to the care of his disabled daughter were analyzed:

Contrary to the hospital’s contentions, admissible evidence established the decedent’s conscious pain and suffering during the days prior to his death and on the day of his death. The decedent’s statements to his wife … complaining of pain, discomfort, hunger, difficulty breathing, and feeling that he was dying, were excited utterances or present sense impressions, or both, and therefore admissible as exceptions to the hearsay rule “for the truth of the matters they assert[ed]” … . The present sense impressions were sufficiently corroborated … by the testimony of the decedent’s wife regarding the decedent’s appearance when she visited him, as well as the testimony of the plaintiffs’ medical experts based on the hospital records. * * *

We agree with the hospital that the plaintiffs failed to establish the decedent’s lost earnings, past or future. However, “[i]n the case of a decedent who was not a wage earner, pecuniary injuries’ may be calculated, in part, from the increased expenditures required to continue the services [he or she] provided, as well as the compensable losses of a personal nature, such as loss of guidance” … .

“[T]he standard by which to measure the value of past and future loss of household services is the cost of replacing the decedent’s services” … . Hyung Kee Lee v New York Hosp Queens, 2014 NY Slip Op 04171, 2nd Dept 6-11-14

 

Courts Will Not Intercede to Resolve a Dispute Between Two Wrongdoers—“In Pari Delicto”

The Second Department explained the doctrine of in pari delicto, where a court will not resolve a dispute between two wrongdoers:

“The doctrine of in pari delicto mandates that the courts will not intercede to resolve a dispute between two wrongdoers. The doctrine survives because it serves important public policy purposes. First, denying judicial relief to an admitted wrongdoer deters illegality. Second, in pari delicto avoids entangling courts in disputes between wrongdoers” … . The evidence established that the plaintiff knew that the defendants were offering to sell what amounted to a franchise as defined by General Business Law § 681(3), to multiple persons at the same time that the plaintiff and the defendants entered into their agreement, and that the plaintiff was both aware of and complicit in the defendants’ violation of the Franchise Sales Act. Under the circumstances, the court properly applied the doctrine of in pari delicto, “not to favor [the]; defendant, but as a matter of public policy” … . Burgers Bar Five Towns LLC v Burger Holdings Corp, 2014 NY Slip Op 03870, 2nd Dept 6-4-14

 

Criteria for Setting Aside a Stipulation of Settlement Explained

In finding plaintiff’s motion to vacate a stipulation of settlement was properly denied, the Second Department explained the operative principles:

“Stipulations of settlement are judicially favored, will not lightly be set aside, and are to be enforced with rigor and without a searching examination into their substance’ as long as they are clear, final and the product of mutual accord'” … . A stipulation of settlement may not be set aside except on a showing of fraud, collusion, mistake, or accident … . Yan Ping Liang v Wei Xuan Gao, 2014 NY Slip Op 04003, 2nd Dept 6-4-14

 

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