Third Department – Page 159 – New York Appellate Digest

MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined mother was properly stripped of joint legal custody:

The evidence reveals the parties’ inability to communicate effectively regarding the child. Notwithstanding their numerous discussions, occurring both in court and out of court, the mother continued to undermine the father and to act contrary to his express wishes. The mother testified that she “knew [the father] was not in agreement” with allowing the child’s continued contact with the boy and that she did not make a “joint decision[].” Nonetheless, she unilaterally decided to permit the child to have physical contact with the boy, and to attend the church where he served as her youth leader and his baseball game. She further acknowledged that a message that she had sent to the father “threaten[ed] to file court papers if he didn’t allow [the child] to do what she wanted on his time.” In sum, although the parties are able to communicate, there is scant evidence that the mother is willing to accept or act upon that communication; instead, after speaking with the father, she disregards his requests and opinion regarding essential parenting issues, and fails to acknowledge that it is important to do so.

Upon this record, a sound and substantial basis supports the determination awarding the parents equal shared physical custody and the father sole legal custody, while directing him to “solicit and reasonably consider” the mother’s input regarding any major decisions … . Similarly, the record supports Family Court’s finding that the mother willfully violated the 2011 order by her admitted failure to bring the child to visitation and by her discussion of court proceedings with the child, as well as the court’s bench order by permitting the child to have further contact with the boy and returning her cell phone … .

From the Dissent:

As the majority recognizes, the mother and the father were not on the same page regarding the issue of the child’s relationship with the 15-year-old boy and the extent and manner in which she should be disciplined for her alleged transgressions. Nevertheless, this is not a situation where the parties’ joint decision making has so broken down that joint legal custody is no longer feasible … . Indeed, the record established that, despite their significantly different parenting styles, the parties had been successfully following the previous order, communicating in the best interests of the child for several years and operating “in harmony” under the concept of “[my] house, [my] rules, [your] house, [your] rules” — a concept that was, notably, introduced by the father. Matter of Thompson v Wood, 2017 NY Slip Op 09219, Third Dept 12-28-17

FAMILY LAW (CUSTODY, MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT))/CUSTODY (FAMILY LAW, LEGAL CUSTODY, MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT))/LEGAL CUSTODY (FAMILY LAW, MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT))

December 28, 2017

Criminal Law, Evidence

PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined a prior burglary should not have been allowed as Molineux and Sandoval evidence in this robbery prosecution. The error was deemed harmless however:

“The Molineux rule requires that evidence of a defendant’s prior bad acts or crimes be excluded unless it is probative of a material issue other than criminal propensity and its probative value outweighs the risk of prejudice to the defendant”… . Although defendant’s intent was at issue, given his defense that he was an innocent bystander who had no knowledge that the codefendants planned to rob [the victim] when he drove them to her residence, the prior conviction was of limited probative value with respect to defendant’s intent because the prior conviction arose from an incident that was not similar to the charged conduct. The prior burglary did not involve a robbery, but, rather, arose from an incident during which defendant entered the residence of another with the intent to assault an occupant. Moreover, [a co-defendant’s] testimony, if believed, was sufficient to permit the jury to find that defendant had the requisite intent to the commit burglary and robbery. Accordingly, the evidence that defendant had committed a prior burglary would serve only to demonstrate that defendant had a propensity to commit burglary and, therefore, the court should have determined that the prior conviction was inadmissible as proof of defendant’s intent … .

County Court also erred in its Sandoval ruling. Although the crime was not too remote to be relevant and the nature of the conviction was probative of defendant’s credibility, allowing the prior crime to be identified as burglary improperly suggested that defendant had a propensity to commit one of the crimes with which he was charged … . People v Williams, 2017 NY Slip Op 09196, Third Dept 12-28-17

CRIMINAL LAW (EVIDENCE, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, RIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/MOLINEUX EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/SANDOVAL EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))

December 28, 2017

Contract Law

IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT).

The Third Department explained the concept of a design-build “turnkey” project, noting that the property owner is generally not a third-party beneficiary of the contracts entered into by the entity in charge of the design-build “turnkey” project (here RBG):

It is undisputed that neither plaintiff entered into a contract with RZA nor RDI. Rather, RBG entered into contracts with each of those entities, as would be expected in a turnkey project. “In turnkey or design-build construction projects, an owner contracts with one entity to both design and build the project and the turnkey builder is responsible for every phase of the construction from final design through subcontracting, construction, finishing, and testing. The design-builder generally cannot shift liability and is the single point of responsibility under a design-build contract, because” the design-builder is responsible for all phases of construction, including “the responsibility for holding the contracts with its trade contractors” … .

Generally, a party may not assert a cause of action for breach of contract against a person or entity with whom it is not in privity … . Without a contractual relationship and the resulting privity, plaintiffs could proceed against RZA or RDI only if plaintiffs were third-party beneficiaries of RBG’s contract with those entities or had the functional equivalent of privity… .”[O]rdinarily, construction contracts are not construed as conferring third-party beneficiary enforcement rights” … . Luckow v RBG Design-Build, Inc., 2017 NY Slip Op 09221, Third Dept 12-28-17

CONTRACT LAW (CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/THIRD PARTY BENEFICIARY (CONTRACT LAW, CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/CONSTRUCTION (CONTRACT LAW, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/DESIGN-BUILD (CONTRACT LAW, CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))/TURNKEY PROJECT (CONTRACT LAW, CONSTRUCTION, DESIGN-BUILD, TURNKEY, IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT))

December 28, 2017

Civil Procedure

COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT).

The Third Department determined Supreme Court should not have dismissed causes of action for failure to name necessary parties, but rather should have ordered the parties joined:

Supreme Court erred, however, by determining that petitioners’ failure to name Negron, Zell, Lowe, Robertson and Burkert as necessary parties required dismissal of the first three causes of action in the petition/complaint … . CPLR 1001 (b) provides that where a party or parties who should be joined have “not been made a party and [are] subject to the jurisdiction of the court, the court shall order [them] summoned” … . Because Negron, Zell, Lowe, Robertson and Burkert are necessary parties and are subject to Supreme Court’s jurisdiction insofar as they were employees of the City of Kingston Police Department at the time of commencement of this proceeding, the court should have ordered them joined… . Accordingly, we find that this matter must be remitted to Supreme Court to order Negron, Zell, Lowe, Robertson and Burkert to be joined as necessary parties … . Matter of Farrell v City of Kingston, 2017 NY Slip Op 09214, Third Dept 12-28-17

CIVIL PROCEDURE (NECESSARY PARTIES, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))/NECESSARY PARTIES (CIVIL PROCEDURE, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))/CPLR 1001 (NECESSARY PARTIES, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))

December 28, 2017

Nuisance, Private Nuisance, Real Property Law, Trespass

TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ trespass and nuisance actions based upon water run-off from neighboring property should not have been dismissed:

It is well-settled that “[l]andowners making improvements to their land are not liable for damage caused by any resulting flow of surface water onto abutting property as long as the improvements are made in a good faith effort to enhance the usefulness of the property and no artificial means, such as pipes and drains, are used to divert the water thereon” … . The diversion of water by artificial means, however, is not strictly limited to the use of pipes, drains and ditches and may otherwise be established where it is demonstrated that the net effect of defendants’ improvements “so changed, channeled or increased the flow of surface water onto [the] plaintiff[s]’ land as to proximately cause damage[] to the property” … . …

Based on the … competing affidavits, we find that there are triable issues of fact as to whether defendants’ improvements to the subject parcels diverted surface water onto plaintiffs’ property by artificial means … , were made in bad faith or otherwise altered the elevation and grade of the Town Homes’ parcel with the express purpose of diverting water onto plaintiffs’ property … . …

Additionally, plaintiffs were not required to prove an intentional intrusion or intentional interference with their right to use and enjoy the property in order to sustain their private nuisance claim — such a claim being actionable upon proof that defendants’ invasion was either intentional, negligent or reckless, or otherwise involved abnormally dangerous activities … .. Further, to the extent that plaintiffs’ nuisance cause of action relies entirely on proof of defendants’ allegedly negligent conduct, the nuisance and negligence claims are essentially duplicative of one another and, therefore, Supreme Court’s dismissal of plaintiffs’ negligence claim was appropriate under the circumstances … . 517 Union St. Assoc. LLC v Town Homes of Union Sq. LLC, 2017 NY Slip Op 08925, Third Dept 12-21-17

REAL PROPERTY (TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT))/TRESPASS (TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT))/NUISANCE (TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT))

December 21, 2017

Insurance Law

BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT).

The Third Department determined the action against the insurance broker, alleging the broker failed to procure the necessary insurance, was properly dismissed. Plaintiff was injured when he fell off a ladder and obtained a more than $6,000,000 verdict against the property owner. The property owner’s insurance included an exclusion of coverage for construction workers. The broker had sent a letter to the property owner alerting the owner to the exclusion and stating that such coverage could be purchased:

At best, plaintiff established that [the property owner] made a generalized request for liability coverage, and it is well-settled that such a generalized request is insufficient to satisfy the requirement that a specific request for a particular type of coverage be made … . …

Even assuming, without deciding, that plaintiff submitted sufficient proof demonstrating the existence of a special relationship [between the property owner and the defendant broker], the record demonstrates that defendant fulfilled any corresponding duty of advisement that it may have owed to plaintiff’s assignors based upon defendant’s unambiguous letter advising [the property owner], in writing, that additional insurance coverage for injuries to construction workers was available and could be procured upon request … and [the property owner’s] testimony that he was aware that injuries to construction workers were specifically excluded from the policy that he purchased. Because the record is devoid of any specific request for such additional coverage ever having been made … , we find that defendant’s motion for summary judgment dismissing the complaint against it was appropriately granted … . Cromer v Rosenzweig Ins. Agency Inc., 2017 NY Slip Op 08926, Third Dept 12-21-17

INSURANCE LAW (BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT))/SPECIAL RELATIONSHIP (INSURANCE LAW, BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT))

December 21, 2017

Family Law, Municipal Law, Social Services Law

FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT).

The Third Department determined the fact that father’s sister was a supervisor in St. Lawrence County Department of Social Services (SLCDSS) did not present a conflict of interest such that SLCDSS could not prosecute a neglect petition. Family Court had transferred the matter to the Jefferson County Department of Social Services (JCDSS):

In SLCDSS’s papers submitted in response to petitioner’s motion, SLCDSS noted that the father’s sister is a grade A supervisor in its Child Preventive Services Unit and, in light of the neglect petition, the case would be transferred from the Child Protective Unit to the Child Preventive Services Unit. The mere fact, however, that the father’s sister was employed with SLCDSS as a supervisor does not justify disqualifying SLCDSS from prosecuting the neglect petition, especially where SLCDSS does not demonstrate that such fact created actual prejudice or a substantial risk of an abuse of confidence … . Moreover, the record discloses that since Family Court’s order, SLCDSS has taken steps to ensure that the father’s sister has no supervisory role in the father’s case. In view of the foregoing, we find that no conflict of interest exists prohibiting SLCDSS from prosecuting the neglect proceeding … . Matter of Gage II. (Rachel JJ.), 2017 NY Slip Op 08931, Third Dept 12-21-17

FAMILY LAW (MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/MUNICIPAL LAW (FAMILY LAW, DSS, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/NEGLECT (FAMILY LAW, MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))

December 21, 2017

Family Law

MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department determined grandmother had met her burden showing extraordinary circumstances warranting the award of custody to her. The matter was remitted for a determination whether the grandmother’s custody was in the best interests of the child. The court noted that Family Court should not have dismissed mother’s petition for custody for failure to show a change in circumstances. Custody was previously awarded to grandmother by consent:

“[W]here, as here, a parent seeks to regain custody from a nonparent . . .[,] it is well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter” … .A prior “consent order, standing alone, does not constitute a judicial finding [or an admission] of surrender, abandonment, unfitness, neglect or other extraordinary circumstances” … .

As to the issue of extraordinary circumstances, as relevant here, a grandparent “may make the requisite showing of extraordinary circumstances . . . by establishing that there has been an ‘extended disruption of custody'” … . An extended disruption of custody includes, “but [is] not limited to, a prolonged separation of the . . . parent and the child for a least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the . . . grandparent” … . When considering whether the parent voluntarily relinquished care and control of the child and the child resided with the grandparent for the requisite period of time, factors to consider “‘include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role'” … .

Once the maternal grandmother met her threshold burden, Family Court was obligated to determine what disposition would be in the child’s best interests … . Matter of Christy T. v Diana T., 2017 NY Slip Op 08916, Third Dept 12-21-17

FAMILY LAW (MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))/CUSTODY (NONPARENT, MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))

December 21, 2017

Family Law

RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, over a two-justice dissent, determined that the evidence did not support removing the child from the mother’s custody:

Although a prolonged separation between a parent and child may support a finding of extraordinary circumstances… , here, the limited record does not warrant a finding of extraordinary circumstances on this basis. The grandmother was the primary physical custodian for most of the younger child’s life, but there is no claim or evidence that the mother abdicated her responsibilities, and the record indicates that she had unsupervised parenting time with both children since 2004 and has been a joint custodian since at least December 2014 … . The history of neglect is relevant …, but the mother’s history — though tragic — was remote and there was no evidence or claim that she has failed to comply with the recommendations and obtain the treatment offered by DSS in recent times or that she has failed to remain involved in the children’s lives … . … While we acknowledge that Family Court had due cause for concern, absent extraordinary circumstances, we necessarily must find that the mother is entitled to retain custody of the younger child … . Although certainly not dispositive, it is important to recognize that the attorneys for the children have both supported the mother’s appeal.

Even were we to accept that the prior history established a basis for finding extraordinary circumstances, given that the grandmother allowed the children to reside with the mother since September 2015 and refused to resume her role as primary physical custodian, there has clearly been a change of circumstances … . The record otherwise shows that the mother has provided a stable home and appropriate medical care for the younger child, who has maintained excellent grades in school and participates in positive extracurricular activities, such as the boy scouts. From our reading of the Lincoln hearing, we do not get the impression that the younger child’s testimony was coached. As such, we would also conclude that the placement of physical custody with the mother is in the younger child’s best interests. Matter of Connie VV. v Cheryl XX., 2017 NY Slip Op 08913, Third Dept 12-21-17

FAMILY LAW (CUSTODY, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))/CUSTODY (FAMILY LAW, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))

December 21, 2017

Civil Procedure, Products Liability

DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).

The Third Department determined defendant Enerco was entitled to discovery of information demonstrating the retail distribution of the type of clothes distributed by defendant Star of India which had caught fire from a heater manufactured or distributed by defendant Enerco. The court held that Enerco did not have to rely on a printout created by Star of India purporting to demonstrate Star of India did not distribute the clothes in question. The court also held that Enerco’s motion to amend its answer was properly denied. There was evidence Enerco had led parties to believe it was not going to assert the cross-claims it sought to include in the amended answer, thereby limiting questioning during a deposition:

… [T]he Enerco defendants do not rely on mere speculation for their discovery demand. Based upon this, together with the fact that the search results are entirely dependent upon the search terms that are used and that [the party] was unable to explain how the results she relied upon were generated, we find that the complete contents of the database from 2004 to 2009 “may be fairly characterized as useful and reasonable” … .Furthermore, our review of the record does not suggest that disclosure of the contents of the database for this specific period would be unnecessarily onerous or impose any special burden on Star of India … . …

The Enerco defendants asserted that their 2½-year delay in moving for leave to amend their answer was due to the fact that they were operating ‘under the incorrect assumption that they had asserted cross claims against every co-defendant.’ This proffered excuse, however, is belied by the affidavit of Amy Weissman, an attorney for one of the codefendants. The Weissman affidavit makes clear that the Enerco defendants induced the other defense attorneys in the second action not to ask questions at the deposition of the Enerco defendants’ witnesses based on the explicit representation by counsel for the Enerco defendants that they had no cross claims against those codefendants. Thus, we view the proffered excuse to be disingenuous.

… These defendants have relied upon the Enerco defendants’ representation to their prejudice by forgoing questioning of the Enerco defendants’ witnesses, and they have been hindered in the preparation of their case … . Palmatier v Mr. Heater Corp., 2017 NY Slip Op 08918, Third Dept 12-21-17

CIVIL PROCEDURE (DISCOVERY, MOTION TO AMEND ANSWER, DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/DISCOVERY (DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ANSWER (MOTION TO AMEND, DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ATTORNEYS (DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS PRECLUDED AMENDMENT OF ANSWER (THIRD DEPT))

December 21, 2017

Tag Archive for: Third Department

MOTHER, ALTHOUGH A FIT AND LOVING PARENT, WAS PROPERLY STRIPPED OF LEGAL CUSTODY, DISSENT DISAGREED (THIRD DEPT).

PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT).

IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY OF CONTRACTS ENTERED INTO BY THE TURNKEY BUILDER IN CHARGE OF THE PROJECT (THIRD DEPT).

COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT).

TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT).

BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT).

RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT).

DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).

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