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Father Demonstrated Child Was Constructively Emancipated/Child Support Obligation Terminated

The Second Department determined Family Court should have terminated father’s child support obligation because the child was “constructively emancipated:

””It is fundamental public policy in New York that parents are responsible for their children’s support until age 21″ … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment”… . ” [W]here it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent’… . Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” … . Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated … . “The burden of proof as to emancipation is on the party asserting it”… . * * *The evidence at the hearing established that the father consistently made a serious effort to maintain a relationship with the subject child during the relevant time period. The testimony adduced at the hearing demonstrated that the father regularly called the subject child at the mother’s home, but his calls would either go unanswered, or, according to the mother, the subject child would refuse to speak with him. The father testified that he left messages indicating his willingness to participate in counseling with the subject child, but these offers were not accepted. On special occasions, the father left gifts and cards for the child that the child did not acknowledge. The father also contacted the child’s therapist and suggested therapeutic visitation with the child. However, the child refused this offer. In addition to demonstrating the father’s serious efforts to maintain a relationship with the child, the evidence demonstrated that, during the relevant period of time, the father’s behavior was not a primary cause of the deterioration in his relationship with the subject child. Based on the evidence presented at the hearing, the father satisfied his burden of demonstrating that the subject child was constructively emancipated, and a finding in the father’s favor in connection with this issue is warranted by the facts. Matter of Jurgielewicz v Johnston, 2014 NY Slip Op 01325, 2nd Dept 2-26-14

 

Defendant Not Entitled to Dismissal of Complaint On Ground that Condition of the Property Was Open and Obvious

The Second Department determined defendant was not entitled to summary judgment dismissing the complaint on the ground that the condition causing plaintiff’s injury was open and obvious. Plaintiff stepped back when fireworks were being set off in defendant’s yard. Plaintiff tripped on blocks forming a border around a tree and was impaled on a wooden stake within the border. The Second Department also determined the defendant was not entitled to dismissal of the negligent supervision cause of action (re: third persons setting off fireworks):

A property owner is charged with the duty of maintaining its premises in a reasonably safe condition … . A property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . The issue of whether a dangerous condition is open and obvious is also fact-specific, and usually a question of fact for a jury to resolve … . Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances … . A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted …. .The evidence relied upon by the defendant in support of his motion, which included the photographs attached to his affidavit as well as the parties’ deposition testimony, did not establish his prima facie entitlement to judgment as a matter of law by demonstrating that the subject condition was open and obvious under the circumstances of this case… . Pelligrino v Trapasso, 2014 NY Slip Op 01304, 2nd Dept 2-26-14

 

Height Differential Between Concrete Slabs in Sidewalk “Trivial” As a Matter of Law

The Second Department determined a defect which caused plaintiff to trip was “trivial” as a matter of law. The defect was a difference in height between two concrete slabs in a sidewalk:

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable… . Slattery v Sachen N High Sch, 2014 NY Slip Op 01310, 2nd Dept 2-26-14

 

Criteria for a Civil Contempt Finding

The Second Department, in finding defendant had violated a court order with respect to discovery (and therefore was in contempt), explained the criteria for civil contempt:

“To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order of the court, clearly expressing an unequivocal mandate, of which that party had knowledge, and that as a result of the violation a right of a party to the litigation was prejudiced” … . The movant bears the burden of proving the civil contempt by clear and convincing evidence… . DeMaio v Capozello, 2014 NY Slip Op 01291, 2nd Dept 2-26-14

 

Setback Dimensions Drawn on Subdivision Map Not Reflected in Documents in Defendants’ Chain of Title/Setback Restrictions, Therefore, Did Not Run With the Land

The Second Department reversed Supreme Court, finding that the setback lines drawn on a subdivision map were not reflected on the documents in defendants’ chain of title and, therefore, did not run with the land:

“[T]he policy of the law is to favor free and unobstructed use of realty” … . “[A] purchaser takes with notice from the record only of incumbrances in his direct chain of title. In the absence of actual notice before or at the time of his purchase or of other exceptional circumstances, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to himself or his direct predecessors in title” … . “A purchaser is not normally required to search outside the chain of title” … . Deed restrictions are strictly construed against those seeking to enforce them and will be enforced only where their existence has been established by clear and convincing proof … .In this case, the plaintiffs failed make a prima facie showing that the front and rear yard setback lines drawn on the subdivision map are deed restrictions that run with the land. Contrary to the plaintiffs’ contention, there is nothing in the defendants’ chain of title which indicates that these setback lines are deed restrictions that run with the land… . Butler v Mathisson, 2014 NY Slip Op 01289, 2nd Dept 2-26-14

 

Plaintiff’s Alleging a Deed Executed Within the Ten-Year Statute of Limitations for Adverse Possession Is Void Creates a Presumption of Possession by the Plaintiff Within the Ten-Year Period

The Second Department determined that plaintiff’s action to quiet title was not time-barred. Plaintiff alleged decedent’s signature on a deed was forged. By alleging the 1998 deed was void, plaintiff is presumed to have had possession of the premises within the statutory 10-year statute of limitations for adverse possession:

CPLR 212(a) provides that “[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action” (CPLR 212[a]…). However, CPLR 212(a) must be read together with RPAPL 311, which provides that “the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action” (RPAPL 311 [emphasis added]…)..Here, the plaintiff sufficiently alleged possession of the subject premises within 10 years of commencing this action by asserting that the 1998 deed …, as well as each subsequent deed in the chain of title, was void. Under these circumstances, “the plaintiff, as the alleged legal title holder of the premises, is presumed to have possession of the premises within the time required” … . Elam v Altered Ego Realty Holding Corp, 2014 NY Slip Op 01292, 2nd Dept 2-26-14

 

Handling Of Consecutive Sentences Under the Drug Law Reform Act Explained

Finding the resentence excessive, the Second Department reduced defendant’s resentence under the Drug Law Reform Act (DLRA) from five consecutive 20-year terms to five consecutive 15-year terms, noting that because the original sentence (five 25-to-life terms) was consecutive, the terms imposed under the Drug Law Reform Act must also be consecutive:

Here, the defendant sought to be resentenced for the convictions of criminal sale of a controlled substance in the first degree, for which he had originally received consecutive sentences amounting to a total aggregate term of imprisonment of 125 years to life. Although the Supreme Court correctly observed that it was powerless, under the DLRA, to alter the defendant’s sentence so that the five terms of imprisonment imposed for the convictions of criminal sale of a controlled substance in the first degree run concurrently with each other …, it was nevertheless permitted to “consider any facts or circumstances relevant to the imposition of a new sentence” (L 2004, ch 738, § 23…). Accordingly, under the circumstances, in evaluating the appropriate terms of imprisonment to impose upon resentencing, the Supreme Court should have considered the fact that the sentences that were originally imposed for the convictions of criminal sale of a controlled substance in the first degree were directed to run consecutively to each other … . Here, since the resentences imposed by the Supreme Court were required to run consecutively with each other, the total aggregate term of imprisonment for the convictions of criminal sale of a controlled substance in the first degree still amounted to 100 years in prison. * * *Under the circumstances of this case, including the fact that the courts are constrained from giving effect to the ameliorative purpose of the DLRA by directing resentences to run concurrently with each other when they were originally directed to run consecutively …, we conclude that the resentence imposed was excessive to the extent indicated… . People v Cole, 2014 NY Slip Op 01182, 2nd Dept 2-19-14

 

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“Common Law Arbitration” Explained/”Common Law Arbitration” Waived by Seeking Relief in a Counterclaim

The Second Department explained “common law arbitration,” i.e., an oral agreement to arbitrate, and determined defendant had waived the agreement to arbitrate by raising a counterclaim which related to the subject of the agreement to arbitrate:

Although there was no written agreement to arbitrate in this case, where one party demands arbitration, and the other party accepts the demand, an oral agreement to arbitrate may be formed … . Oral agreements to arbitrate are not covered by CPLR article 75, and are referred to as “common-law arbitration” agreements… . * * *However, the defendants, by their conduct in this lawsuit, waived arbitration. As this Court explained in Reynolds & Reynolds Co., Automotive Sys. Div. v Goldsmith Motor Corp. (251 AD2d 312, 313),”[t]here is no inflexible or mechanical rule as to what constitutes a waiver of the right to arbitrate. Rather, determination of the issue depends on the facts and circumstances of each particular case . . . Among the factors to be considered are the extent of the party’s participation in litigation and conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and whether the other party has been prejudiced”… . Willer v Kleinman, 2014 NY Slip Op 01164, 2nd Dept 2-19-14

 

A Prima Facie Case Under the Dram Shop Act Had Been Made Against Both Bars Which Served Plaintiff’s Decedent, Even Though the Alcohol Served at the First Bar Would Have Metabolized by the Time of the Accident Had Plaintiff’s Decedent Not Continued to Drink at the Second Bar

The Second Department determined a bar, defendant Mulinos, could be liable under the Dram Shop Act even though the alcohol consumed at Mulinos would have metabolized by the time of the vehicle accident had plaintiff’s decedent not consumed more alcohol. After leaving Mulinos, however, plaintiff’s decedent went to another bar, defendant Trotters Tavern, and was served more alcohol. A jury could have found the alcohol served at Mulinos contributed to his intoxication as he continued drinking at Trotters Tavern. The Second Department determined plaintiff had made out a prima facie case at trial that both bars were liable under the Dram Shop Act and, therefore, the trial judge should not have granted the defendants’ motions for judgments dismissing the complaint as a matter of law:

Contrary to the Supreme Court’s conclusion, accepting the evidence presented at trial by the plaintiff as true, and according it every favorable inference, the plaintiff established, prima facie, that there was a “reasonable or practical connection” between the alleged unlawful sale of alcohol at Mulinos and the resulting damages … . Although the Medical Examiner acknowledged that the alcohol that Sullivan consumed at Mulinos would have been metabolized by the time of the accident, “assum[ing] that [he] did not consume anymore alcohol that evening,” she also opined, based on the testimony of the witnesses and Sullivan’s blood alcohol content at the time of the accident, that Sullivan did indeed consume numerous drinks after leaving Mulinos. Considering the evidence presented, a jury could have reasonably concluded that Sullivan remained intoxicated throughout the night, that the alcohol consumed at Mulinos contributed to his intoxication to an appreciable degree, and thus, that there was a reasonable and practical connection between the alcohol served at Mulinos and the damages sustained in the accident … . Sullivan v Mulinos of Westchester Inc, 2014 NY Slip Op 01161, 2nd Dept 2-19-14

 

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Elements of False Arrest and Malicious Prosecution Explained

The Second Department reversed Supreme Court and dismissed plaintiff’s false arrest and malicious prosecution action. The court explained the elements of the two intentional torts:

“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” … . “The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim of false imprisonment or false arrest”… . Generally, information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest'” … . * * *

“The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice” … . “Once a suspect has been indicted, . . . the indictment creates a presumption of probable cause to believe that the suspect committed the crime” … . “The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, [or] that they have withheld evidence or otherwise acted in bad faith” … . Williams v City of New York, 2014 NY Slip Op 01165, 2nd Dept 2-19-14

 

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