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PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT).

The Third Department determined plaintiff’s motion to amend the complaint to add a cause of action for wrongful death was properly granted. Plaintiff’s daughter died after the lawsuit had begun. She had ingested a harmful substance at a festival and the complaint alleged the failure to prevent the use of drugs at the festival and the inadequacy of medical treatment facilities at the festival. Defendants argued there was insufficient evidence of a causal link between the ingestion of the harmful substance and plaintiff’s daughter’s death:

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… [D]efendants failed to meet their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot credibly claim surprise from the proposed amendment… . Moreover, we have previously recognized that plaintiff has a viable negligence cause of action based upon allegations that decedent’s injuries were caused by defendants’ failure to ensure that she received adequate and timely emergency medical care … . Defendants have not demonstrated that the amendment, which adds a cause of action for wrongful death based upon that negligence … , is “palpably insufficient or patently devoid of merit” … .

To the extent that defendants argue that the motion for leave to amend to add a cause of action for wrongful death must be supported by competent medical proof showing a causal connection between their alleged negligence and decedent’s death, they are incorrect. Prior decisions have held that, “[w]here a plaintiff seeks to amend a complaint alleging medical malpractice to add a cause of action for wrongful death, such motion must be accompanied by ‘competent medical proof showing a causal connection between the alleged negligence and the decedent’s death'” … . Matter of Bynum v Camp Bisco, LLC, 2017 NY Slip Op 08433, Third Dept 11-30-17

 

CIVIL PROCEDURE (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/COMPLAINT, AMENDMENT OF (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/NEGLIGENCE (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/WRONGFUL DEATH (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))

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THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that Supreme Court should not have allocated all the proceeds of an insurance policy to the Workers’ Compensation Board and should have ordered the Board to file an accounting pursuant to CPLR 7702. The Board is seeking compensation from members of a workers’ compensation trust which was found to be insolvent. Respondent was a member of the trust and settled with the Board, paying over $1,000,000. Subsequently, in accordance with the terms of the settlement agreement, both the Board and the respondent separately sought to recover funds from an insurance policy. Supreme Court ordered all the recovered proceeds to be paid to the Board and did not order the filing of a verified accounting. The Third Department found that respondent, under the terms of the settlement agreement with the Board, was entitled to some of the funds and an accounting should be filed by the Board. The matter was remitted:

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The provision of the settlement agreement governing allocation of damages obtained from third parties by petitioner is unambiguously applicable by its terms only to the share of the jointly-recovered settlement proceeds that are ultimately allocated to petitioner. This interpretation gives full meaning and effect to the material terms at issue, including respondent’s reservation of its claims against the parties formerly responsible for administration of the trust, the agreement that allocation of the jointly-recovered settlement proceeds would be made in the instant CPLR article 77 proceeding and the provision precluding respondent from using activities undertaken after May 31, 2012 to justify a claim to allocation of the settlement proceeds. Petitioner’s contrary view — that it is entitled to all settlement proceeds because they were insufficient to satisfy the trust’s outstanding obligations and, therefore, that no surplus existed for allocation to former trust members, including respondent — is counter to the plain language of the settlement agreement and would impermissibly render meaningless the express reservation to respondent of all of its claims against former trustees, administrators and professionals. For petitioner’s argument — that all damages recovered from any third party from any source must first be used to satisfy the trust’s outstanding obligations — to prevail, the settling members, like respondent, would have had to have waived their claims against such third parties or subordinated their independent claims to petitioner’s claims. The settlement agreement contains no such terms. Thus, the matter must be remitted for allocation of the jointly-recovered settlement proceeds between petitioner and respondent and, as to any such proceeds allocated to petitioner, a determination of whether there are surplus funds remaining for distribution among the settling former trust members, including respondent. Matter of New York State Workers’ Compensation Bd. v Murray Bresky Consultants, Ltd, 2017 NY Slip Op 08244, Third Dept 11-22-17

 

WORKERS’S COMPENSATION LAW (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CONTRACT LAW (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT,  (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CIVIL PROCEDURE (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT, VERIFIED ACCOUNTING, (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CPLR 7702  (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT, VERIFIED ACCOUNTING, (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))

INFORMATION ABOUT COMPETITORS’ PRODUCT PRICING PROVIDED TO SUPERMARKET CHAIN IS NOT TAXABLE (THIRD DEPT).

The Third Department, reversing the tax tribunal, determined that the information provided by a contractor (RetailData) to petitioner, a supermarket chain, about product-prices charged by competitors, was subject to exclusion from the sales and use tax:

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While there is no question that the pricing information that RetailData collects on petitioner’s behalf is information that is available to the public, we agree with petitioner that, under the circumstances presented here, such information does not derive from a singular, widely accessible common source or database as that test has previously been applied and commonly understood in determining the applicability of the subject tax exclusion … . * * *

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… [W]e find that the information services that petitioner purchased from RetailData were personal or individual in nature and were not substantially incorporated into reports of others such that petitioner’s purchase of these information services should have been excluded from taxation pursuant to Tax Law § 1105 (c) (1) … . … In our view, to expand the interpretation of Tax Law § 1105 (c) (1) to allow for the Tribunal’s denial of the subject tax exclusion based solely on the fact that the information ultimately furnished derived from a public source would, under the circumstances presented, serve to defeat the purpose of the exclusion … . Matter of Wegmans Food Mkts., Inc. v Tax Appeals Trib. of The State of New York, 2017 NY Slip Op 08225, Third Dept 11-22-17

 

TAX LAW (SALES AND USE TAX, INFORMATION ABOUT COMPETITORS’ PRODUCT PRICING PROVIDED TO SUPERMARKET CHAIN IS NOT TAXABLE (THIRD DEPT))/SALES AND USE TAX (INFORMATION ABOUT COMPETITORS’ PRODUCT PRICING PROVIDED TO SUPERMARKET CHAIN IS NOT TAXABLE (THIRD DEPT))/INFORMATION SERVICES (SALES AND USE TAX,  INFORMATION ABOUT COMPETITORS’ PRODUCT PRICING PROVIDED TO SUPERMARKET CHAIN IS NOT TAXABLE (THIRD DEPT))

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THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT).

The Third Department determined defendant property maintenance company’s motion for summary judgment in this ice slip and fall case was properly denied. Plaintiff’s testimony about the thickness of the ice raised a question of fact whether defendant had constructive notice of it. The property owner’s motion for summary judgment on the breach of contract action against the property maintenance company was properly granted. In the contract, the property maintenance company agreed to purchase liability insurance, which it did not do. An agreement to purchase insurance is not the same as a promise to indemnify and an action on the agreement need not await a judgment in the slip and fall case:

… [T]he record … includes plaintiff’s testimony that there was no lighting in the sidewalk area and no witness was able to contradict her account that there was ice in the area at the time that she fell. Further, there was no proof that anyone had performed a routine inspection of the area after 7:00 a.m. on the day of her alleged fall, i.e., at any time within 10 hours of the fall, but also no proof that there had been further accumulation of snow after the snowfall the day before. … [I]t is clear that plaintiff raised a triable issue of fact with regard to whether defendant had constructive notice of any dangerous conditions… . The key question to be resolved by the trier of fact is whether, during this 10-hour lapse of time … there was further precipitation that created a dangerous or unsafe condition on the sidewalk and, if so, whether there was sufficient time for defendant[s] … “to reasonably have discovered and remedied it” … .Plaintiff’s description of the thickness and extent of ice on the sidewalk, if accepted, is relevant to the factual question of how long it was present and whether it was visible and apparent such that it would have been discovered upon routine inspection, with sufficient time to remedy it … . Calvitti v 40 Garden, LLC, 2017 NY Slip Op 08241, Third Dept 11-22-17

NEGLIGENCE (SLIP AND FALL, THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/SLIP AND FALL (THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/SIDEWALKS (SLIP AND FALL, THICKNESS OF THE ICE RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SIDEWALK SLIP AND FALL CASE, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))/INSURANCE LAW (SLIP AND FALL, PROMISE TO PURCHASE LIABILITY INSURANCE IS NOT THE SAME AS A PROMISE TO INDEMNIFY (THIRD DEPT))

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PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATED ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim should have been ​granted. Plaintiff alleged defendant town caused water and debris to drain onto his property causing the foundation of his house to cave in. In finding plaintiff should have been allowed to file a late notice of claim, the court explained the factors that should be considered and the flaws in Supreme Court’s analysis, which focused on the excuse for the delay and the merits of the underlying action. The most important factors are the defendant’s actual notice of the facts of the case within the statutory period and the absence of prejudice:

While a reasonable excuse for the delay is a statutory factor … , it is well settled that “‘the failure to offer a reasonable excuse for the delay in filing a notice of claim is not fatal where actual [knowledge] was had and there is no compelling showing of prejudice'” … . Similarly, although Supreme Court was permitted to consider the merits of the underlying claim, leave should only be denied on this basis when the claim is “‘patently meritless'” … , which was not established here.

Upon our consideration of all of the pertinent statutory factors, we find that, although plaintiff did not provide a reasonable excuse for his delay, he adequately set forth proof of actual knowledge and lack of substantial prejudice such that his motion should have been granted. Daprile v Town of Copake, 2017 NY Slip Op 08243, Third Dept 11-22-17

 

MUNICIPAL LAW (NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/REAL PROPERTY LAW (TRESPASS, NUISANCE, MUNICIPAL LAW, NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/TRESPASS (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NUISANCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))

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EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME, INFORMATION FIRST LEARNED IN A LINCOLN HEARING CANNOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case, determined the record did not support the awarding of sole custody to the maternal grandmother, in this appeal by the parents:

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While we accord considerable deference to Family Court’s credibility assessments and factual findings on appeal, we conclude from our review of the trial testimony, without factoring in the Lincoln hearing, that petitioner failed to meet her threshold burden of establishing extraordinary circumstances. The record indicates that the mother and the father were only briefly incarcerated, during which time the children resided with the paternal grandmother — not the maternal grandmother. Upon their release, the mother and the father soon moved into the paternal grandmother’s home and the father obtained full-time employment — a sequence that does not establish an extended disruption of the mother and the father’s custody … . Moreover, while DSS made a finding of neglect, a DSS representative informed Family Court … that DSS did not have any ongoing child protective concerns. In doing so, DSS recognized that the father’s brother, a level one sex offender, lived in the paternal grandmother’s home. There is no evidence that the brother ever mistreated the children… . The father testified that he trusts his brother to be around the children, but would not and does not leave the children alone with him. The mother is not employed and is at home with the children.

As for the maternal grandmother, the record shows that she has never spent more than a couple of hours with the children and would only see them a few times each year. …

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Family Court’s decision … raises an additional concern. Specifically, the court’s reference to “another male whose presence around children is questionable” — a person that the court then characterized as an undesirable — is not based on any testimony during the trial. As explained by the Court of Appeals in Matter of Lincoln v Lincoln (24 NY2d 270 [1969]), any new information adverse to the parents derived during a Lincoln hearing may not be considered by the court “without in some way checking on its accuracy during the course of the open hearing” … . Under the circumstances presented, we conclude that the matter must be remitted to Family Court for further proceedings to address the circumstances concerning the other male in the paternal grandmother’s home and to determine whether or not there has been a showing of extraordinary circumstances based on the totality of the evidence and, if so, what disposition is in the best interests of the children. Matter of Shaver v Bolster, 2017 NY Slip Op 08232, Third Dept 11-22-17

 

FAMILY LAW (CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/CUSTODY (FAMILY LAW, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, MODIFICATION OF CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))/LINCOLN HEARING (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))

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EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support child abuse and neglect findings against the respondent mother. Injuries to the child were caused by father. But the evidence did not support the finding that mother knew or should have known father had injured the child:

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Based upon our review of the evidence in this record, we cannot conclude that respondent knew or should reasonably have known that she was placing the younger child in danger by leaving him in the care of his father while she went to work. Respondent consistently maintained, in her testimony and in her various statements to law enforcement and a Child Protective Services caseworker, that she did not know how the fractures had occurred, that she did not think the father had caused them and that, prior to observing redness and swelling in the child’s leg … , she had not noticed anything unusual or concerning with respect to the younger child. …

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Nor do we find that respondent neglected the younger child by failing to seek medical care for the child when she observed redness and swelling in his leg … . Respondent testified that the child was not crying, that she thought the redness and swelling could be a reaction to vaccines that the child had a few days earlier and that she continually monitored the child’s condition that evening and throughout the next day. According to respondent, prior to leaving for work the following morning, she directed the father to monitor the child’s leg and let her know if it got worse. Respondent testified that she checked in with the father on her lunch break, scheduled an appointment with the child’s pediatrician for immediately after work and instructed the father to take the child to the doctor earlier if he determined that it could not wait. Under these circumstances, the record does not support a finding that respondent neglected the younger child by, as petitioner contends, failing to secure prompt medical attention … . Matter of Lucien HH. (Michelle PP.), 2017 NY Slip Op 08224, Third Dept 11-22-17

 

FAMILY LAW (CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/CHILD ABUSE (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))

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STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined the child support provisions of a stipulation complied with the Child Support Standards Act (CSSA) and were enforceable. The Third Department further found that the proper standard for an upward modification of support was that which was agreed to in the stipulation:

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The stipulation, as well as the order of support, recite that the parties had been advised of and fully understood the child support provisions of the CSSA and that the application of the statute would result in the presumptively correct amount of child support to be awarded. The stipulation then sets forth the presumptive amount of child support that would be awarded under the CSSA and the agreed-upon figures used to calculate that amount, states that the parties are deviating from the presumptive amount and provides a detailed explanation of the reasons for the deviation therefrom. Thus, the opt out provisions of the stipulation fully comply with the CSSA … . That the judgment of divorce does not explicitly set forth the CSSA recitals is not determinative, as the statute only requires the inclusion of such recitals in the “agreement or stipulation . . . presented to the court for incorporation in an order or judgment” … .

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Generally, a party seeking modification of a child support provision derived from an agreement or stipulation incorporated but not merged into a judgment of divorce has the burden of proving, insofar as is relevant here, “that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the children are not being adequately met”… . “The parties are free, however, to agree to different terms triggering a change in the obligations of the payor spouse, including the application of a standard other than substantial unanticipated and unreasonable change in circumstances as the basis for determining a modification application, provided that . . . the children’s personal right to receive adequate support is not adversely affected and public policy is not offended” … . Here, the parties’ 1999 stipulation expressly provides that either party may petition a court for a modification of child support based upon “a change of circumstances.” Through this clear and unqualified language, the parties plainly expressed an intent to dispense with the “unanticipated and unreasonable change of circumstances” standard in favor of a less burdensome “change of circumstances” standard … . Matter of Frederick-Kane v Potter, 2017 NY Slip Op 08219, Third Dept 11-22-17

 

FAMILY LAW (CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CHILD SUPPORT (FAMILY LAW, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, STIPULATION, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/STIPULATION (FAMILY LAW, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/UPWARD MODIFICATION (FAMILY LAW, CHILD SUPPORT, , STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))

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DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT).

The Third Department determined that defendant’s second degree murder counts were lesser inclusory counts of first degree murder. Therefore the second degree murder counts should have been dismissed upon the first degree murder conviction. The fact that this issue was not raised below or on appeal did not preclude dismissal by the appellate court:

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… [A]lthough not raised by either party, modification of the judgment is required. “With respect to inclusory concurrent counts, . . . [a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” (CPL 300.40 [3] [b]). The two counts of murder in the second degree upon which defendant was convicted are inclusory concurrent counts of the count of murder in the first degree upon which he was also convicted … . Consequently, defendant’s convictions of murder in the second degree must be reversed and the respective counts of the indictment dismissed. People v Davis, 2017 NY Slip Op 08214, Third Dept 11-22-17

 

CRIMINAL LAW (DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))APPEALS (CRIMINAL LAW, DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))/INCLUSORY CONCURRENT COUNTS (CRIMINAL LAW, DESPITE THE FAILURE TO RAISE THE ISSUE ON APPEAL, THE INCLUSORY CONCURRENT SECOND DEGREE MURDER COUNTS MUST BE DISMISSED BASED UPON THE FIRST DEGREE MURDER CONVICTION (THIRD DEPT))

OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT).

The Third Department determined defendant’s motion to suppress statements and seized property (from the search of his person and home) based upon an unjustified street stop was properly granted. Fifteen minutes after receiving a report that the victim of a robbery had found his stolen car, Deputy Mauser drove around the block in the vicinity of the stolen car and saw defendant “walking pretty fast” “with a purpose.” When Mauser activated his lights and got out of his car, the defendant fled and Mauser followed, forcibly stopped, detained and arrested him:

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In arguing that Mauser had, at least, a founded suspicion of criminality, the People rely heavily on defendant’s geographic proximity to the stolen vehicle. However, time and again, courts have held that geographic location, without more, is insufficient to sustain a suspicion of criminality … . Although Mauser testified that he arrived in the area 13 to 14 minutes after receiving the dispatch, the record is devoid of any indication that Mauser possessed information — such as the precise time that the vehicle was reported as found or how long it had been there prior to the report — that could lead to the reasonable inference that the person or persons involved in the theft of the vehicle might still be in the area. Nor does the record establish that Mauser was acting on reliable information identifying or describing the person suspected to have stolen the vehicle … . Rather, Mauser solely relied on defendant’s location in relation to the area in which the vehicle was reportedly found and the fact that he was walking at a brisk pace at 2:53 a.m. on a cold winter day. Together, these facts were insufficient to form a founded suspicion of criminality, so as to justify the common-law right to inquire … .

In any event, even if Mauser’s initial encounter with defendant was considered to be a level one stop or if Mauser were found to have possessed a founded suspicion that criminality was afoot to justify a level two stop, defendant had the constitutional right to be let alone and, by disregarding Mauser’s directive to stop, defendant did not elevate the level of suspicion to a reasonable suspicion that a crime had been, was being or was about to be committed… . While “[f]light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … , the requisite additional facts supporting criminality were lacking here … . Accordingly, Mauser’s pursuit and forcible stop and detention of defendant were improper, and County Court properly suppressed the physical evidence found on defendant’s person and in his home, as well as any statements he made to police … . People v Rose, 2017 NY Slip Op 08217, Third Dept 11-22-17

 

CRIMINAL LAW (STREET STOPS, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))/STREET STOPS (CRIMINAL LAW, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))’SEARCH AND SEIZURE (STREET STOPS, MOTION TO SUPPRESS, OFFICER’S PURSUIT, FORCIBLE STOP, DETENTION AND ARREST OF FLEEING DEFENDANT NOT JUSTIFIED, MOTION TO SUPPRESS STATEMENTS AND ITEMS SEIZED IN SEARCHES PROPERLY GRANTED (THIRD DEPT))

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