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TRADE SECRET EXEMPTION DOES NOT REQUIRE PROOF DISCLOSURE WOULD RESULT IN COMPETITIVE INJURY.

The Third Department, in a full-fledged opinion by Justice Rose, determined the exemption from disclosure under the Freedom of Information Law (FOIL) for trade secrets did not require a showing that disclosure of the trade secrets would result in substantial competitive injury. Rather, the statute, Public Officers Law 87 (2) (d), provides two distinct exemptions from disclosure: one for bona fide trade secrets and one for documents which, if disclosed, would cause substantial injury to the competitive position of the owner of the documents. Supreme Court’s finding that the exemption for trade secrets did not require proof of injury to competitive position was upheld. There are strict criteria in place for determining whether information constitutes a bona fide trade secret. Applying those criteria, Supreme Court properly determined that several documents provided by petitioner (Verizon) to the Department of Public Service were exempt from FOIL disclosure as bona fide trade secrets:

 

As pertinent here, Public Officers Law § 87 (2) (d) protects from FOIL disclosure “all records” that “are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.” Respondents argue that this language unambiguously indicates that the Legislature intended to create a single FOIL exemption for all types of confidential commercial information imparted to an agency — including trade secrets — and to subject all such information to the same showing of substantial competitive injury. * * *

Our courts have long recognized “[t]he importance of trade secret protection and the resultant public benefit” … , and have developed a fact-intensive inquiry to determine whether specific commercial information is a bona fide trade secret worthy of such protection. First, it must be established that the information in question is a “‘formula, pattern, device or compilation of information which is used in one’s business, and which gives [one] an opportunity to obtain an advantage over competitors who do not know or use it'” … . Second, if the information fits this general definition, then an additional factual determination must be made

“concerning whether the alleged trade secret is truly secret by considering: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others” … .

Inasmuch as an entity seeking to establish the existence of a bona fide trade secret must make a sufficient showing with respect to each of these factors, we agree with Supreme Court that it is wholly unnecessary and overly burdensome to require the entity to then make a separate showing that FOIL disclosure of the trade secret would cause substantial injury to its competitive position.  Matter of Verizon N.Y., Inc. v New York State Pub. Serv. Commn.2016 NY Slip Op 00239, 3rd Dept 1-14-16

 

HUMAN RIGHTS LAW (REFUSAL TO ALLOW SAME-SEX MARRIAGE ON PETITIONER’S PROPERTY CONSTITUTED AN UNLAWFUL DISCRIMINATORY PRACTICE)/CONSTITUTIONAL LAW (REFUSAL TO ALLOW SAME-SEX MARRIAGE ON PETITIONERS’ PROPERTY DID NOT VIOLATE PETITIONERS’ RIGHTS TO FREE EXERCISE OF RELIGION, FREE SPEECH OR EXPRESSIVE ASSOCIATION)/SAME-SEX MARRIAGE (REFUSAL TO ALLOW VIOLATED HUMAN RIGHTS LAW)/PLACE OF PUBLIC ACCOMMODATION (DEFINED FOR PURPOSES OF UNLAWFUL DISCRIMINATION UNDER THE HUMAN RIGHTS LAW)

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WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, COUNTY COURT’S ERROR IN ALLOWING EVIDENCE AT TRIAL WHICH THE COURT HAD PREVIOUSLY PRECLUDED REQUIRED REVERSAL AND A NEW TRIAL.

The Third Department determined it was reversible error to allow a police officer’s testimony identifying defendant as a person depicted in surveillance video from a store about an hour before the robbery of which defendant was convicted. Defendant claimed he was shopping in the store at the time of the robbery. The evidence of defendant’s participation in the robbery was not overwhelming. The trial judge had ruled the video could be introduced in evidence but no testimony identifying the defendant as a person depicted in the video could be offered. At trial, however, over objection, Cornell, a police officer, was permitted to identify the defendant in the video:

 

… [E]arlier in the proceedings County Court had ruled that, to the extent that the People were going to offer such surveillance footage into evidence, they were precluded from offering testimony identifying defendant in such footage. Cornell then testified on direct examination that he obtained the video surveillance footage from the store where defendant had claimed to have been shopping at the time of the robbery and described a group of five people that entered at approximately 6:20 p.m. and left at approximately 6:45 p.m., approximately one hour before the robbery. Upon the People’s question, “And the group being [defendant], three women and a toddler,” Cornell answered, “That’s correct.” Defendant objected to the question and the answer, which was overruled by County Court. Inasmuch as this testimony violated County Court’s prior ruling because it identified defendant as being the individual in the video who was accompanied by three women and a toddler, it should have been precluded.

Based upon the record before us, County Court’s evidentiary error in permitting Cornell’s identification testimony of defendant in the surveillance video cannot be deemed harmless. Specifically, under the particular factual circumstances of this case, the evidence of defendant’s guilt, although legally sufficient to support the jury’s verdict, was not overwhelming given the lack of direct evidence linking defendant to the crime and the conflicting witness testimony regarding defendant’s presence at the crime scene … . People v Myrick, 2016 NY Slip Op 00217, 3rd Dept 1-14-16

 

CRIMINAL LAW (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)/EVIDENCE (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)

STATUTORY DOCTRINE OF EQUITABLE DEVIATION ALLOWED CHURCHES TO DEVIATE FROM THE TERMS OF CHARITABLE TRUSTS TO SEEK A LARGER RETURN ON INVESTMENTS.

The Third Department, reversing Surrogate’s Court, determined petitioners, three churches which were beneficiaries of charitable trusts, were entitled to equitable deviation from the terms of the trusts. The trusts required the assets be held in insured bank accounts. Because bank accounts have generated low interest for many years, the churches sought to deviate from the terms of the trusts and make investments in accordance with the Prudent Investor Act (EPTL 11-2.3):

 

EPTL 8-1.1 (c) embodies “New York’s statutory articulation of cy pres and equitable deviation” … . Equitable deviation involves altering or amending an administrative provision, whereas cy pres effects a substantive change … . Thus, equitable deviation may be appropriate where cy pres is not because an administrative change can be made without altering the purpose of the trust or changing its disposition provisions … . Some cases addressing common-law equitable deviation required an unforeseen change in circumstances … , whereas the statutory provision applicable to charitable trusts does not require the change to be unforeseen … . The statute provides that “whenever it appears to [Surrogate’s Court] that circumstances have so changed since the execution of an instrument making a disposition for religious . . . purposes as to render impracticable or impossible a literal compliance with the terms of such disposition, the court may, on application . . . make an order or decree directing that such disposition be administered and applied in such a manner as in the judgment of the court will most effectively accomplish its general purposes, free from any specific restriction, limitation or direction contained therein” … . Matter of Chamberlin, 2016 NY Slip Op 00087, 3rd Dept 1-7-16

 

TRUSTS AND ESTATES (EQUITABLE DEVIATION ALLOWED CHURCHES TO SEEK A LARGER RETURN ON INVESTMENTS FROM CHARITABLE TRUSTS)/CHARITABLE TRUSTS (EQUITABLE DEVIATION ALLOWED CHURCHES TO SEEK A LARGER RETURN ON INVESTMENTS)/EQUITABLE DEVIATION (DOCTRINE OF EQUITABLE DEVIATION ALLOWED CHURCHES TO SEEK A LARGER RETURN ON INVESTMENTS)

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SUIT ALLEGING TOWN AND COUNTY NEGLIGENTLY ISSUED PERMITS FOR A FESTIVAL WITHOUT MAKING SURE EMERGENCY MEDICAL SERVICES WERE ADEQUATE DISMISSED ON GOVERNMENTAL-IMMUNITY GROUNDS.

The Third Department, reversing Supreme Court, determined the town’s and county’s motions for summary judgment should have been granted on governmental-immunity grounds. Plaintiff’s daughter, Bynum, ingested a harmful substance at a music festival. Plaintiff sued the town and county alleging they negligently issued the permits for the festival without making sure there were adequate emergency medical services to accommodate the crowd. The Third Department held the town and county were immune from suit because the issuance of permits is a governmental function and plaintiff did not demonstrate a special relationship between Bynum and the town or county:

 

Where, as here, a municipality engages in a quintessential governmental function such as the issuance of permits, even if it does so negligently, the municipality is immune from liability unless it owed “a special duty to the injured person, in contrast to a general duty owed to the public” … . As relevant here, to prove a special duty to Bynum, plaintiff must establish “[t]he elements of a special relationship includ[ing] . . . direct contact between the municipality’s agents and [Bynum], and [Bynum’s] justifiable reliance . . . on the municipality’s affirmative promise to act” … .

Viewing the pleadings and submissions in the light most favorable to plaintiff and providing her with every favorable inference … , we must agree with defendants that plaintiff’s complaint and bill of particulars are devoid of factual allegations that Bynum had any direct contact with defendants, or that she relied upon any affirmative promise that defendants’ agents would keep her safe while she attended [the festival]. Bynum v Camp Bisco, LLC, 2016 NY Slip Op 00091, 3rd Dept 1-7-16

 

NEGLIGENCE (TOWN AND COUNTY IMMUNE FROM SUIT, NO SPECIAL RELATIONSHIP)/MUNICIPAL LAW (TOWN AND COUNTY IMMUNE FROM SUIT, NO SPECIAL RELATIONSHIP)/GOVERNMENTAL IMMUNITY (TOWN AND COUNTY IMMUNE FROM SUIT, NO SPECIAL RELATIONSHIP)

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QUESTION OF FACT WHETHER DEFENDANT-CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM AND WHETHER THERE WAS AN INTERVENING, SUPERSEDING CAUSE OF THE INJURY, CRITERIA FOR BOTH EXPLAINED.

The Third Department, reversing Supreme Court, determined defendant-contractor’s motion for summary judgment should not have been granted. Defendant contracted with the NYS Department of Transportation (DOT) to do roadwork. Plaintiff alleged the roadwork caused the car in which he was a passenger to go airborne. The Third Department found that the alleged excessive speed attributed to the driver of the car was not unforeseeable as a matter of law. Therefore, there was a question of fact whether the speed was the superseding cause of the accident. The court explained the law re: tort liability to third persons arising from contract, and an intervening, superseding cause of injury:

 

… “[A] party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties[;] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . “The general rule is that ‘[a] builder or contractor is justified in relying upon the plans and specifications which he [or she] has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury'” * * *

… “[W]here the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus” … . Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law … . Dunham v Ketco, Inc., 2016 NY Slip Op 00082, 3rd Dept 1-7-16

 

 

 

 

 

 

NEGLIGENCE (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/NOTICE OF CLAIM (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/BILL OF PARTICULARS (CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)/MUNICIPAL LAW (BILL OF PARTICULARS CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)

CAUSES OF ACTION ALLEGING PROMOTERS OF A MUSIC FESTIVAL NEGLIGENTLY FAILED TO CURTAIL THE USE OF DRUGS AT THE FESTIVAL AND NEGLIGENTLY FAILED TO PROVIDE ADEQUATE EMERGENCY MEDICAL FACILITIES AT THE FESTIVAL PROPERLY SURVIVED MOTIONS TO DISMISS.

The Third Department determined plaintiff stated causes of action sounding in negligence against the promoters of a music festival, called Camp Bisco. Plaintiff’s daughter, Bynum, ingested a harmful substance at the festival. The complaint alleged defendants failed to take adequate measures to prevent the use of drugs at the festival and failed to make sure there were adequate emergency medical facilities at the festival:

 

Mass gathering permittees, such as defendants, “have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties” … . “The scope of that duty is defined according to the likelihood that such behavior will occur and endanger [attendees] based on past experience” … . Accepting as true plaintiff’s allegations that defendants knew or should have known of the widespread presence and use of illegal drugs at this annual festival, known as Camp Bisco, we find that plaintiff has adequately stated a cause of action for negligence based on defendants’ alleged failure to exercise reasonable care in curtailing the use of illegal drugs on the festival grounds.

As for plaintiff’s separate cause of action for negligence based upon defendants’ alleged failure to provide adequate onsite emergency medical services, defendants, as mass gathering permittees, had a clear duty to provide such services pursuant to the State Sanitary Code (see 10 NYCRR 7-4.3 [n]; 18.3 [b]; 18.4 [a]). According to plaintiff’s allegations, defendants knew that Camp Bisco had increased in size every year and that, in 2011, over 26,000 people were in attendance. Plaintiff further asserts that, despite their apparent knowledge, defendants circumvented their duty to provide the proper level of medical services at the festival by misrepresenting to the relevant permitting authorities that the maximum attendance for the 2012 edition of Camp Bisco attended by Bynum would be just 12,000 people (see 10 NYCRR 18.4 [a] [1], [2]). Accepting plaintiff’s further statement that defendants’ provision of inadequate medical services was a proximate cause of Bynum’s injuries, we find that these allegations state a cognizable theory of negligence as well … . Bynum v Keber, 2016 NY Slip Op 00093, 3rd Dept 1-7-16

 

NEGLIGENCE (CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/MUSIC FESTIVALS (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/DRUG USE (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/MEDICAL FACILITIES (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)

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PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENDANT’S VOCATIONAL REHABILITATION EXPERT.

The Third Department, overruling its own precedent, determined plaintiff, in this Labor Law 200, 240(1) and 241(6) action, could properly be compelled to submit to an examination by defendant's vocational rehabilitation expert:

CPLR 3101 “broadly mandates full disclosure of all matter material and necessary in the prosecution and defense of an action” … . “The words 'material and necessary' as used in [CPLR] 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'” … . To properly exercise such discretion, a trial court must balance the need for discovery “against any special burden to be borne by the opposing party” … . If the trial court has engaged in such balancing, its determination will not be disturbed in the absence of an abuse of discretion … .

… While we previously held that there is “no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist” … , the Court of Appeals has since confirmed that the mandate for broad disclosure is not necessarily limited by the more specific provision of the CPLR that allows a defendant to demand that a plaintiff submit to a physical or mental examination “by a designated physician” (CPLR 3121 [a]) where his or her medical condition is at issue … . Accordingly, the circumstances of a case may allow such a demand even in the absence of express statutory authority … . We agree with the conclusion reached by the other Departments that such circumstances are not limited to those cases where a plaintiff has retained a vocational rehabilitation expert to establish damages, although, generally, such testing “might well be unduly burdensome”… .

… [Plaintiff] placed his ability to work in controversy by claiming that, as a result of his injuries, he suffered loss of future wages and reduced earning capacity and by testifying at his examination before trial that his future career opportunities were limited … . Hayes v Bette & Cring, LLC, 2016 NY Slip Op 00090, 3rd Dept 1-7-16

LABOR LAW (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/NEGLIGENCE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPDERT)/CIVIL PROCEDURE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/VOCATIONAL REHABILITATION EXPERT (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/DISCLOSURE (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)

FORECLOSURE OF A REVERSE MORTGAGE CAN BE BASED UPON HOMEOWNER’S FAILURE TO MAKE HAZARD INSURANCE PAYMENTS.

The Third Department determined summary judgment should not have been granted to defendant homeowner in a reverse-mortgage foreclosure action. Foreclosure proceedings were started because defendant did not make hazard insurance payments. Plaintiff bank made those payments on her behalf. The Third Department held that the relevant regulations allowed plaintiff bank to make the hazard insurance payments, but did not require it to do so. Foreclosure, therefore, can be based upon defendant’s failure to make the payments:

 

Defendant was obliged to “pay all property charges consisting of taxes, ground rents, flood and hazard insurance premiums, and special assessments” under the terms of the loan documents (24 CFR 206.205 [a]), and those documents contemplate that foreclosure is an available remedy for her failure to perform such an obligation (see 24 CFR 206.27 [b] [6]; [c] [2] [iii])[FN1]. Supreme Court nevertheless held that plaintiff was precluded from seeking foreclosure by 24 CFR 206.205 (c), which provides that “[i]f the mortgagor fails to pay the property charges in a timely manner, and has not elected to have the mortgagee make the payments, the mortgagee may make the payment for the mortgagor and charge the mortgagor’s account” (emphasis added). Language such as “may” should ordinarily be read as permissive, “and mandatory effect is given to [it] only when required by the context of the [regulation], the facts surrounding its [promulgation], or the purposes sought to be served thereby” (McKinney’s Cons Laws of NY, Book 1, Statutes § 177 [b]). The context of 24 CFR 206.205 gives no reason to believe that mandatory effect should be afforded to its discretionary language and, contrary to the conclusion of Supreme Court, neither does the purpose underlying the federal regulatory scheme. The scheme in question is intended to enable the Secretary to provide insurance for reverse mortgages that will facilitate the offering of such mortgages to elderly homeowners by lenders which, in turn, will allow the homeowners to monetize their accumulated home equity (see 12 USC § 1715z-20 [a]; 24 CFR 206.1). This actual goal runs against an interpretation of the regulation that would prevent a mortgagee from pursuing whatever permissible remedy it deems appropriate to recover unpaid carrying costs and, indeed, adopting that reading could well have a chilling effect on the willingness of lenders to offer reverse mortgages. We therefore read 24 CFR 206.205 (c) as allowing, but not requiring, plaintiff to pay carrying charges owed by defendant rather than resorting to foreclosure … . Onewest Bank, FSB v Smith, 2016 NY Slip Op 00092, 3rd Dept 1-7-16

 

FORECLOSURE (FORECLOSURE OF REVERSE MORTGAGE MAY BE BASED ON HOMEOWNER’S FAILURE TO MAKE HAZARD INSURANCE PAYMENTS)/MORTGAGES (FORECLOSURE OF REVERSE MORTGAGE MAY BE BASED ON HOMEOWNER’S FAILURE TO MAKE HAZARD INSURANCE PAYMENTS)/REVERSE MORTGAGES (FORECLOSURE OF REVERSE MORTGAGE MAY BE BASED ON HOMEOWNER’S FAILURE TO MAKE HAZARD INSURANCE PAYMENTS)/REVERSE MORTGAGES (FORECLOSURE OF REVERSE MORTGAGE MAY BE BASED ON HOMEOWNER’S FAILURE TO MAKE HAZARD INSURANCE PAYMENTS)

DOCTRINE OF EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION, CRITERIA EXPLAINED.

The Third Department affirmed Family Court’s finding that the doctrine of equitable estoppel did not apply to petitioner’s application for an order of filiation. Equitable estoppel is triggered when the party seeking an order of filiation has acquiesced in the development of a parent-child relationship with another man. Here, although the child recognized some persons as “father figures” no parent-child relationship had developed with any single person:

 

“The doctrine of equitable estoppel is a defense in a paternity proceeding which, among other applications, precludes a man . . . from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” … . The party asserting application of the doctrine — here, the attorney for the children — “has the initial burden of establishing a prima facie case to support that claim” … . Assuming that burden is met, the burden then shifts to the nonmoving party — here, petitioner — to establish that it would be in the best interests of the children to order the genetic marker test … .

… [W]e agree with Family Court that application of the doctrine of equitable estoppel is not warranted here. Although the children’s therapist testified on direct (and respondent testified on rebuttal) that the girls do not recognize petitioner as their father, “[n]oticeably absent from the record is any indication that [another identified individual] played a significant role in raising, nuturing or caring for [respondent’s children]” … . To the contrary, both the therapist and respondent acknowledged that the children identified a number of individuals as “father figures” in their lives … . Hence, establishing petitioner’s paternity would not disrupt an existing parent-child relationship between the children and another individual … . Matter of Patrick A. v Rochelle B., 2016 NY Slip Op 00079, 3rd Dept 1-7-16

 

FAMILY LAW (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)/EQUITABLE ESTOPPEL (FAMILY LAW, EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)/FILIATION, ORDER OF (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST)/PATERNITY (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)

FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING THE PROCEDURE REQUIRED BY FAMILY COURT ACT 154-c VACATED.

The Third Department determined Family Court did not follow the statutory procedure for issuing final orders of protection. Although a court may issue a temporary order of protection on its own motion without following the procedure, it may not do so for final orders:

 

… Family Ct Act § 154-c (3) provides, in relevant part: “No order of protection may direct any party to observe conditions of behavior unless: (i) the party requesting the order of protection has served and filed a petition or counter-claim in accordance with article four, five, six or eight of this act and, (ii) the court has made a finding on the record that such party is entitled to issuance of the order of protection which may result from a judicial finding of fact, judicial acceptance of an admission by the party against whom the order was issued or judicial finding that the party against whom the order is issued has given knowing, intelligent and voluntary consent to its issuance” (emphasis added). Although a Family Court can issue a temporary order of protection on its own motion and, in so doing, it would “not [be] required to follow all of the ordinary procedural requirements” (… see Family Ct Act § 828 [1] [a]), where, as here, the court enters a final order of protection, it is required to observe the procedural steps set forth in Family Ct Act § 154-c (3) … . Indeed, Family Ct Act § 154-c (3) was amended in 1998 “to incorporate, explicitly, federal minimum due-process requirements regarding judicial findings as a prerequisite to issuing orders of protection, to ensure that such orders are given full faith and credit by courts of other jurisdictions” …

Here, although there was an exchange of proposed terms for mutual orders of protection, the mother clearly indicated that she did not consent to the orders containing the terms that Family Court ultimately adopted on its own motion or admit any pertinent allegations set forth in the father’s family offense petition … . Nor did Family Court conduct an examination of the factual basis of the parties’ family offense petitions or make a finding that the terms objected to by the mother were “reasonably necessary” to protect the parties or their children … . Matter of Daniel W. v Kimberly W., 2016 NY Slip Op 00070, 3rd Dept 1-7-16

 

FAMILY LAW (FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING STATUTORY PROCEDURE VACATED)/ORDERS OF PROTECTION (FAMILY COURT, FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING STATUTORY PROCEDURE VACATED)

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