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Three-Step Analysis for Child Support Under Child Support Standards Act

The Second Department explained the three step analysis for the determination of child support obligations pursuant to the Child Support Standards Act (the parents in this case had a combined annual income of more than $700.000.00):

Under the first step of the analysis, a court must determine the parties’ combined parental income … . …Under the second step of the analysis, pursuant to Domestic Relations Law § 240(1-b)(c)(1), we multiply so much of the combined parental income up to $80,000.00—which was the “statutory cap” in effect on the date of the 2008 Judgment …—by the applicable statutory child support percentage, or 29% for the parties’ three children (see Domestic Relations Law § 240 [1-b][c][2]…). We then allocate the resulting amount … between the parties according to their pro rata share of the combined parental income (see Domestic Relations Law § 240 [1-b][c][2]). The third step in the analysis applies where, as here, the combined parental income exceeds the applicable statutory limit of $80,000.00. In this situation, “courts [have] the discretion to apply the [sub]paragraph (f)’ factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $80,000” … . As applicable here, the subparagraph (f) factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed had the marriage or household not been dissolved (see Domestic Relations Law § 240[1-b][f][1][3]). These factors further the objectives of the CSSA, which include “the assurance that both parents would contribute to the support of the children” and that the court consider “the total income available to the parents and the standard of living that should be shared with the child” … .  Beroza v Hendler, 2013 NY Slip Op 05607, 2nd Dept 8-14-13

 

Criteria for Determining Whether Relocation of Custodial Parent is in Best Interests of the Children Explained

The Second Department explained the criteria for determining whether relocation of the custodial parent would be in the best interests of the children as follows:

In determining whether relocation is appropriate, the court must consider a number of factors, including the child’s relationship with each parent, the effect of the move on contact with the noncustodial parent, and each parent’s motives for seeking or opposing the move … . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

…The Family Court found credible the mother’s testimony at trial that, if she were permitted to relocate with the children to Florida, the children’s quality of life would be significantly improved on a day-to-day basis because the cost of living would be less than it is in New York, where she was struggling financially, and the mother would have several close family members in the vicinity of her new home to offer her support. Significantly, it was undisputed that the mother was the children’s primary caregiver, and that the father was minimally involved in the children’s lives.  Matter of Davis v Ogden, 2013 NY Slip Op 05626, Second Dept 8-14-13

 

Work Accident and Auto Accident Cases Should Be Consolidated Because Plaintiff Alleged Auto Accident Injuries Exacerbated by Work-Related-Accident Injuries

The Second Department determined two actions should be consolidated.  Plaintiff was injured in an auto accident and alleged that those injuries were exacerbated by a work-related accident:

Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the … . In view of [plaintiff’s] allegations that certain injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly… . Cieza v 20th Ave Realty Inc, 2013 NY Slip Op 05610, 2nd Dept 8-14-13

 

Amendment of Bill of Particulars After Four Years of Discovery Should Not Have Been Allowed

The Second Department determined Supreme Court should not have allowed plaintiff to amend his bill of particulars to include aggravation of a preexisting condition because the request came after four years of discovery during which plaintiff had affirmatively stated his injuries did not include aggravation of preexisting condition:

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” (…see CPLR 3025[b]…). “However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious’” … .Under the circumstances of this case, including the fact that, during four years of discovery, the plaintiff affirmatively maintained that his injuries did not include the aggravation of a pre-existing condition, as well as the lateness of his request for leave to amend, the prejudice to the defendants, and the lack of any reasonable excuse for the delay, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion for leave to amend his bill of particulars … .  Rodgers v New York City Tr Auth, 2013 NY Slip Op 05623, 2nd Dept 8-14-13

 

“Law of the Case” Doctrine Did Not Apply—Dismissal of Affirmative Defense Did Not Constitute Full Litigation of the Issue

In a property-line dispute, the Second Department reversed Supreme Court ruling that the location of the fence on plaintiff’s property was the “law of the case.”  The “law of the case” doctrine was imposed by Supreme Court based on the dismissal of the title insurance company’s affirmative defense which claimed the fence was on defendant’s land.  The Second Department wrote:

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” …  The doctrine “applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision” …, “and to the same questions presented in the same case” … . “Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a full and fair’ opportunity to litigate the initial determination” … .  Contrary to the determination of the Supreme Court, the prior order …which granted [the] motion pursuant to CPLR 3211 to dismiss …, did not necessarily resolve the issue of whether the fence was located on the plaintiffs’ property or the defendants’ property, as the parties did not have an opportunity to fully litigate that issue… . Ramanathan v Aharon, 2013 NY Slip Op 05621, 2nd Dept 8-14-13

 

Criteria for Avoiding Dismissal After Failure to Comply with 90-Day Notice to Serve and File Note of Issue Explained

The Second Department explained the criteria for avoiding dismissal for failure to comply with a 90-day notice to serve and file a note of issue:

Here, the defendant … did not serve a 90-day demand, but relied instead on an order dated June 13, 2008, which instructed the plaintiffs that the failure to serve and file a note of issue within 90 days would result in dismissal of the action pursuant to CPLR 3216. This order had the same effect as a valid 90-day notice pursuant to CPLR 3216 … .To avoid the sanction of dismissal, the plaintiffs were initially required to comply with the order dated June 13, 2008, either by serving and filing a timely note of issue or by moving, before the default date, to vacate the order or to extend the 90-day period pursuant to CPLR 2004 … . Having failed to pursue either of the foregoing options, the plaintiffs were obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal (see CPLR 3216[e]…).  Griffith v Wray, 2013 NY Slip Op 05615, 2nd Dept 8-14-13

 

Criteria for Disclosure from Nonparty Witness

The Second Department explained the criteria for disclosure from a nonparty witness:

A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the “circumstances or reasons” why disclosure is “sought or required” from such nonparty witness (CPLR 3101[a][4]…). Here, the plaintiff failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the prosecution of this case (see CPLR 3101[a]…).  Dicenso v Wallin, 2013 NY Slip Op 05612, 2nd Dept 8-14-13

 

Law Office Failure Was Valid Excuse for Default—Answer Deemed Served in Absence of Cross Motion

The Second Department determined law office failure constituted a valid excuse for a defendant’s default and defendant’s answer, which was attached to the papers submitted in opposition to plaintiff’s motion for a default judgment, would be deemed served in the absence of a cross motion seeking leave to file a late answer:

In its discretion, the court may accept law office failure as an excuse (see CPLR 2005;… . The claim of law office failure should, however, be supported by a “detailed and credible” explanation of the default or defaults at issue … . Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated…. The Supreme Court providently exercised its discretion in accepting the defendant’s excuse of law office failure, as the defendant provided detailed affidavits of personnel explaining the delay in timely serving an answer.  Blake v United States of Am, 2013 NY Slip 05609, 2nd Dept 8-14-13

 

Court Has No Power to Dismiss for Failure to Prosecute in Absence of 90-Demand to File and Serve Note of Issue

The Second Department noted that a court does not have the power to dismiss a complaint based on the doctrine of laches, or failure to prosecute, where plaintiff has not been served with a 90-day demand to serve and file a note of issue (CPLR 3216).  Baxter v Javier, 2013 NY slip Op 05605, 2nd Dept 8-14-13

 

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Consolidation and Assignment of Mortgages Does Not Affect Validity of Original Mortgages

The Second Department explained that the consolidation and assignment of mortgages did not affect the validity of the original mortgages:

In the instant matter, the plaintiff increased the outstanding balance of the first mortgage by borrowing the second mortgage loan and executing the CEMA [Consolidation, Extension and Modification Agreement].  Although the CEMA  created a single mortgage lien, “[a] consolidation of outstanding loans is a device intended for the convenience of only the contracting parties” and “cannot impair liens in favor of parties that are not the contracting parties, which retain their independent force and effect” … . Where, as here, balances of first mortgage loans are increased with second mortgage loans and CEMAs are executed to consolidate the mortgages into single liens, the first notes and mortgages still exist and may be assigned to other lenders … . Further, an assignment of a loan obligation means that the obligation has been transferred, not paid in full and, thus, contrary to the plaintiff’s allegation, does not render the obligation satisfied and discharged.  Benson v Deutsche Bank Natl Trust Inc, 2013 NY Slip Op 05606, 2nd Dept 8-14-13

 

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