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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

 

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Unjust Enrichment Does Not Require a Wrongful Act by the One Enriched

The Second Department explained the criteria for determining a motion to dismiss for failure to state a cause of action and the elements of an unjust enrichment cause of action. Unjust enrichment does not require a wrongful act:

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … .”The essential inquiry in any action for unjust enrichment or restitution is whether … it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered … .”Unjust enrichment . . . does not require the performance of any wrongful act by the one enriched” … . “Innocent parties may frequently be unjustly enriched” … . “What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it'” … . Alan B Greenfield MD PC v Beach Imaging Holdings LLC, 2014 NY Slip Op 01285, 2nd Dept 2-26-14

 

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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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Re: A Mental Hygiene Law Civil Commitment Proceeding for a Sex Offender, Failure to Give the Jury an Adequate Explanation of the Meaning of “Sex Offense” May Have Resulted in an Unsupported “Mental Abnormality” Finding

The Second Department determined the trial court committed reversible error by not, upon defense counsel’s request, giving a further instruction to the jury on the meaning of “sex offense” as part of the jury charge on mental abnormality. The jury found the appellant had committed a sexually motivated felony and suffers from a mental abnormality (re: civil commitment of a sex offender under the Mental Hygiene Law). The appellant had pled guilty to the burglary of a woman’s home. During the burglary the appellant allegedly had “touched that woman’s vagina and buttocks with a hard object.” At the “Mental Hygiene Law” trial, the State presented evidence of appellant’s sexual behavior in prison which did not constitute a sex offense enumerated under the Mental Hygiene Law. The jury may not have understood how to evaluate the “unenumerated” behavior under the Mental Hygiene Law:

Here, the State’s evidence consisted predominantly of instances of the appellant’s sexually inappropriate acts that would not constitute sex offenses under Mental Hygiene Law article 10. Specifically, the State’s expert testified at length regarding instances in which the appellant masturbated while he could be observed by prison officers or by staff members while placed at a secure treatment facility, and his propensity to continue to act in a sexually improper manner. The appellant’s conduct, however, at most, might constitute the crime of public lewdness (Penal Law § 245), a class B misdemeanor, which is not one of the sex offenses enumerated under Mental Hygiene Law article 10. In light of the particular circumstances presented in this proceeding, the Supreme Court should have granted the appellant’s request to issue an expanded charge to the jury containing supplemental information as to the specific statutory meaning of “sex offense,” so that the jury could make a proper evaluation of the evidence.…

[T]he Supreme Court’s failure to either provide the statutory definition of “sex offense” under Mental Hygiene Law article 10 or to inform the jury that there is a distinction between a predisposition to commit a “sex offense” and a predisposition to commit nonenumerated acts of sexual misconduct could have misled the jury into making a finding of mental abnormality, based solely upon the evidence of the appellant’s predisposition to commit any improper sexual conduct. Consequently, a new trial is required … . Matter of State of New York v Adrien S, 2014 NY Slip Op 01175, 2nd Dept 2-19-14

 

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

 

“Vested Right” Doctrine Explained

The Second Department concluded that the plaintiffs, who were seeking to effect a development plan under less restrictive R-3 zoning regulations, did not have a “vested right” in the plan such that the plan could be carried out after the area was rezoned to implement the more restrictive R-1 zoning regulations. Plaintiffs had negotiated a boundary change and had demolished some structures in furtherance of the development plan. The Planning Board, however, had never granted final unconditional approval of the plan. In explaining the “vested interest” doctrine, the Second Department wrote:

“In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development” … . “Neither the issuance of a permit . . . nor the landowner’s substantial improvements and expenditures, standing alone, will establish the right. The landowner’s actions relying on a valid permit must be so substantial that the municipal action results in serious loss rendering the improvements essentially valueless”… .”Reliance” is an essential element of the doctrine … . Although many cases speak in terms of reliance on permits …, a right may vest in certain situations when “subdivisions” have been given a “final grant of approval” … . Whether a planning board’s final unconditional approval of a site plan may, even in the absence of a building permit, satisfy the first prong of the test has not been settled in New York …, and it is not before us now. Matter of Exeter Bldg Corp v Town of Newburgh, 2014 NY Slip Op 00996, 2nd Dept 2-13-14

 

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Fall from Subway Platform Not the Result of Negligent Crowd Control

The Second Department reversed Supreme Court and dismissed a lawsuit stemming from plaintiff’s decedent’s fall from a subway platform to the tracks below. The court explained the negligence criteria with respect to the crowd on a subway platform:

“A subway company is not negligent merely because it permits crowds to gather on its platform. Before proof of negligence in this regard may be said to exist, it must be shown that the crowd was so large and unmanaged that a user of the platform was restricted in his free movements or was unable to find a safe standing place, and that as a result of either of those conditions an injury was sustained” … .Here, there is no evidence that the crowd on the subway platform was so large and unmanaged that it restricted the decedent’s freedom of movement to the extent necessary to impose liability on the Transit Authority. The evidence in the record was insufficient to make out a prima facie case of negligence against the Transit Authority and, in effect, was insufficient to establish that any negligence was a proximate cause of the decedent’s injuries… . Garcia v New York Tr Auth, 2014 NY Slip Op 00961, 2nd Dept 2-13-14

 

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Agent for Partially Disclosed Principal Is Personally Liable on the Contract

In finding the agent (Sussman) liable for a contract because the principal was not fully disclosed, the Second Department wrote:

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…[The evidence] indicates at best that Sussman was acting as an agent for a “partially disclosed principal,” in that the agency relationship was known, but the identity of the principal remained undisclosed (Restatement [Second] of Agency § 4[2]…). As an agent for an undisclosed principal, Sussman became personally liable under the contract (…Restatement [Second] of Agency § 321). Stonhard v Blue Ridge Farms, LLC, 2014 NY Slip Op 00985, 2nd Dept 2-13-14

 

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