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Revocation of Suspended Judgment Proper

The Second Department determined Family Court had properly revoked father’s suspended judgment for failure to comply with its terms and conditions:

The Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence, that the parent failed to comply with one or more of its conditions…. “When determining compliance with a suspended judgment, it is the parent’s obligation to demonstrate that progress has been made to overcome the specific problems which led to the removal of the child[ren] . . . [A] parent’s attempt to comply with the literal provisions of the suspended judgment is not enough” … . Matter of Kimble G II, 2013 NY Slip Op 05066, 2nd Dept 7-3-13

 

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Prima Facie Case of Family Offenses Not Established (Forcible Touching and Sexual Abuse)

The Second Department found that Family Court properly determined mother failed to establish a prima facie case of the family offense of forcible touching and sexual abuse and properly ruled hearsay inadmissible:

The mother presented no direct evidence that the father touched the child “for the purpose of degrading or abusing” the child or “gratifying [his] sexual desire” (Penal Law § 130.52; see Penal Law §§ 130.00[3]; 130.55;…. Furthermore, although, in some instances, the element of intent may be inferred from the nature of the acts committed and the circumstances in which they occurred…, an intent to gratify sexual desire on the part of the father cannot be inferred from the totality of the circumstances here…. * * *

Contrary to the mother’s contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a “hearing under . . . article [10] and article ten-A” of the Family Court Act (Family Ct Act § 1046[a]), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”…, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case…. Matter of Khan-Soleil v Rashad, 2014 NY Slip Op 05074, 2nd Dept 7-3-13

 

Criteria for Modification of Existing Visitation Arrangement

The Second Department explained the principles relevant to a modification of an existing visitation arrangement as follows:

An existing visitation arrangement may be modified “upon [a] showing . . . that there has been a subsequent change of circumstances and modification is required” (Family Ct Act § 652 [a];…). “Extraordinary circumstances are not a prerequisite to obtaining a modification; rather, the standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered'”… .. “The best interests of the child generally lie in being nurtured and guided by both parents”…. “In order for the noncustodial parent to develop a meaningful, nurturing relationship with her [or his] child, visitation must be frequent and regular. Absent extraordinary circumstances, where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges”….  Matter of Grunwald v Grunwald, 2013 NY Slip Op 05069, 2nd Dept 7-3-13

 

Mother Should Not Have Been Required to Contribute to Children’s Educational Expenses

In determining Family Court abused its discretion in ordering mother to contribute to the children’s educational expenses (where father affirmatively stated he was not seeking the contribution), the Second Department explained:

“Unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory'”…. “Pursuant to Domestic Relations Law § 240(11-b)(c)(7), the court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court’s discretion is not improvidently exercised in that regard”…. Here, however, the Family Court improvidently exercised its discretion in directing the mother to pay 29% of the subject children’s educational expenses, since the father affirmatively stated that he was not seeking such contribution from the mother. Matter of Grubler v Grubler, 2013 NT Slip Op 05068, 2nd Dept 7-3-13

 

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Criteria for Permanent Neglect Explained

The Second Department determined Family Court properly found father had permanently neglected the child and explained the criteria as follows:

“To establish permanent neglect, there must be clear and convincing proof that, for a period of one year following the child’s placement with an authorized agency, the parent failed to substantially and continuously maintain contact with the child or, alternatively, failed to plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship”…. According to the statute, planning for the future of the child means taking such steps as may be reasonably necessary to provide an adequate, stable home and parental care for the child within a period of time that is reasonable under the financial circumstances available to the parent (see Social Services Law § 384-b[7][c]). The plan must be realistic and feasible, and good-faith effort shall not, of itself, be determinative …. At a minimum, planning for the future of the child requires the parent to take steps to correct the conditions that led to the child’s removal from the home… .  Matter of Egypt AAG, 2013 NY Slip Op 05065, 2nd Dept 7-3-13

 

Nonparent Must Show Extraordinary Circumstances in Face of Custody Petition Even If Nonparent Has Custody Pursuant to Prior Consent Order

In upholding Family Court’s denial of mother’s petition for sole custody, the Second Department determined the paternal grandparents, who were sharing custody under a consent order, met their “extraordinary circumstances” burden.  The Second Department noted that even where there is a prior order granting custody to a nonparent, the nonparent still has the burden of demonstrating “extraordinary circumstances” to continue the arrangement in the face of a petition for custody:

In a custody proceeding between a parent and a nonparent, ” the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances'”…. The nonparent has the burden of establishing extraordinary circumstances even where, as here, there is a prior order awarding physical custody of a child to the nonparent that had been issued on the consent of the parties…. Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody….   Matter of DiBenedetto v DiBenedetto, 2013 NY Slip Op 05064, 2nd Dept 7-3-12

 

Father Estopped from Denying Paternity—Best Interests of Child Prevail

In upholding Family Court’s determination the father was estopped from denying paternity, in spite of his executing the acknowledgment based upon a mistake of fact, the Second Department explained the relevant legal principles:

A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interests, from challenging paternity…. If the court concludes that estoppel is not warranted, the court is required to order genetic marker tests or DNA tests for the determination of paternity, and to vacate the acknowledgment of paternity in the event that the individual who executed the document is not the child’s father (see Family Ct Act § 516-a[b][ii];…). * * *

The purpose of equitable estoppel “is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” …. Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity,” in light of the child’s justifiable reliance upon such representations, and the resulting harm that his denial of paternity would engender…. “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” …. In all cases, “the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the child” … . Matter of Angelo AR v Tenisha NW, 2013 NY Slip Op 05084, 2nd Dept 7-3-13

 

Summary Judgment Premature—Disclosure Necessary

In finding Supreme Court should have treated defendant’s motion, which was made after issue was joined, as a motion for summary judgment (not a motion to dismiss), the Second Department determined the motion should not have been granted because facts essential to oppose the motion may exist but could not yet be stated:

An award of summary judgment would be premature at this stage of the case. CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion “exist but cannot then be stated” (CPLR 3212[f];…). ” This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'”…. Here, the defendant’s motion to dismiss the complaint was made prior to the parties conducting depositions. Since the plaintiffs had no personal knowledge of the relevant facts, they should be afforded the opportunity to conduct discovery, including depositions of the defendant’s employees and other witnesses that were present during the incident complained of….  Wesolowski v St Francis Hosp, 2013 NY Slip Op 05061, 2nd Dept 7-3-13

 

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Standard for Liability of Members of Volunteer Fire Company

In affirming the denial of plaintiff’s motion for summary judgment, the Second Department explained the standard for finding liability on the part of members of volunteer fire companies:

Members of volunteer fire companies may not be held liable for acts done in the performance of their duties in the absence of “willful negligence or malfeasance” (General Municipal Law § 205-b;…. Here, the plaintiff failed to establish, prima facie, that the manner in which [defendant]. operated the vehicle at the time of the accident constituted willful negligence or malfeasance….  Schleger v Jurcsak, 2013 NY Slip Op 05056, 2nd Dept 7-3-13

 

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Garbage on Sidewalk May Create Liability

The Second Department determined that defendant’s motion for summary judgment should have been denied.  The plaintiff was injured when his bicycle struck garbage and debris on a sidewalk abutting a building owned by defendants.

New York City Administrative Code § 7-210 imposes a duty upon property owners to maintain the sidewalk adjacent to their property. That duty includes the duty to remove “dirt or other material from the sidewalk,” which includes debris on the sidewalk which came from garbage bags placed on the sidewalk by the property owner (New York City Administrative Code § 7-210 [b];…). On their motion for summary judgment, the defendants bore the burden of establishing that they neither created the hazardous condition nor had actual or constructive notice of its existence…. The defendants failed to establish their entitlement to judgment as a matter of law. They failed to demonstrate that they did not create a dangerous condition, nor did they establish that they properly maintained the sidewalk as required by Administrative Code of the City of NY § 7-210… .  Weinberg v 2345 Ocean Assoc, LLC, 2013 NY Slip Op 05060, 2nd  Dept 7-3-13

 

 

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