You are here: / Third Department

Tag Archive for: Third Department

Failure to Strictly Comply with the Service Instructions in the Court’s Order to Show Cause (Which Included Service by E-Mail and Text Message) Required Dismissal of the Petitions

The Third Department determined the failure to comply with the service instructions in Family Court’s order to show cause required the dismissal of the petitions:

Strict compliance with court-directed methods of service is necessary in order for the court to obtain personal jurisdiction over a respondent/defendant … . Here, petitioner’s counsel drafted and presented Family Court with a proposed order directing service pursuant to CPLR 308 (5). Specifically, the order required that the amended orders to show cause and petitions be served on two attorneys who had represented respondent in unrelated litigation and, further, that substituted service be completed as follows:

“2. By serving [respondent] at [two known] email addresses [and] by including with such emails copies of the [p]etitions, this [o]rder, and the [o]rders to show cause filed by [p]etitioner in support of the [p]etitions, in PDF format, each of such emails to be sent on or before April 28, 2014; and

3. By sending [respondent] an SMS/text message at [a known] subscriber number . . . advising her of the pendency of the two above-captioned proceedings and advising her to access her email addresses as set forth in paragraph 2 herein, to review this [o]rder and the contents of the attached PDF files and to contact her attorneys . . . for copies of the [o]rders to show cause and [p]etitions upon whom these papers have been served on her behalf, said text to be sent on or before April 28, 2014.”

Despite the fact that petitioner’s counsel created the terms upon which substituted service of process would be deemed sufficient, the record demonstrates that petitioner’s compliance with such terms was lacking. As to the email requirement, petitioner’s affidavit of service states that respondent was served on April 28, 2014 via two separate email addresses, as per Family Court’s order, and that both emails were returned as undeliverable. While neither dictates of due process nor Family Court’s order required proof that respondent actually received notice of the proceedings … , we observe that the affidavit of email service fails to state that the documents were, in fact, delivered to respondent in a PDF format.

Of greater concern, however, is the manner in which petitioner conducted service by text message. As to that particular mode of delivery, petitioner’s process server averred that, on April 28, 2014, he sent respondent a text message stating that “[p]aternity and custody petitions have been filed by [petitioner] regarding [the child]. Your court date in [Family Court] is May 21, 2014 at 9AM. Your failure to appear may result in a custody order and default. Contact [respondent’s attorneys] for copies of these documents.” Having neglected to state in the text message, as expressly required in Family Court’s order, that respondent should access her email accounts to review the documents that had been served in a PDF format by email and that the text message was being sent by virtue of Family Court’s order, we agree with Family Court’s determination that such substituted service was insufficient to confer personal jurisdiction over respondent … . Matter of Keith X v Kristin Y, 2015 NY Slip Op 00429, 3rd Dept 1-15-15

 

,

Exceptions to “Exhaustion of Administrative Remedies” Requirement Not Applicable—“Futility” and “Irreparable Harm” Not Demonstrated

The Third Department determined that petitioner (a nursing home) could not, via an Article 78 proceeding, involve the courts to contest the Department of Health’s (DOH’s) calculation of Medicaid reimbursement rates because petitioner did not first exhaust every available administrative remedy.  The exceptions to the exhaustion requirement, futility and irreparable harm, did not apply:

It is well settled that an administrative agency’s determination must be challenged through every available administrative remedy before it can be challenged in the courts … . The narrow exceptions to this requirement include, as relevant here, where an administrative challenge would be futile or the petitioner can demonstrate irreparable harm … . Neither exception has been demonstrated. Matter of Schenectady Nursing & Rehabilitation Ctr LLC, v Shah, 2015 NY Slip Op 00425, 3rd Dept 1-15-15

 

 

Proof Insufficient to Demonstrate Will Drafted and Signed a Few Days Before Death Reflected Decedent’s Intentions

The Third Department affirmed Surrogate’s Court’s denial of the admission of a will to probate.  The will was drafted and signed a few days before decedent’s death and changed the disposition of property.  The court described the proof necessary to authenticate a will and determined the proof was insufficient to link the most recent will to decedent’s intentions:

“In order for a will to be duly executed and attested in New York, the testator must sign the document at the end; the testator must sign or acknowledge the signature in the presence of the attesting witnesses; the testator must declare to each of the attesting witnesses that the instrument is his or her will; and there must be two attesting witnesses who shall, within 30 days, attest the testator’s signature and, at the request of the testator, sign their names and affix their residence addresses” (…see EPTL 3-2.1). Before admitting a will to probate, Surrogate’s Court must be satisfied that the will has been validly executed (see SCPA 1408 [1]…), “that the mind of the testator accompanied the act, and that the instrument executed speaks his [or her] language and really expresses his [or her] will” … . The proponent of a will bears the burden of proving its validity by a preponderance of the evidence … . * * *

In light of the uncertainty surrounding the drafting and execution of this will, we decline to disturb the decree of Surrogate’s Court denying admission of the will to probate … . Matter of Walker, 2015 NY Slip Op 00271, 3rd Dept 1-8-15

 

,

Restrictive Covenants in Homeowners’ Association’s Declaration Do Not Apply to Land Along a Road Which Had Been Dedicated by the Association to the Town

The Third Department determined a homeowners’ association (HPHA) could not restrict the placement of a political sign on property along a road which had been dedicated to the town.  Because there was no evidence the HPHA reserved the right to regulate signs on the strip of land transferred to the town, the HPHA had no authority to prohibit the placement of a sign on the land:

Respondents contend that, although Hudson Pointe, Inc. dedicated land to the Town for the purpose of maintaining the roads within the development, such dedication was subject to the restrictive covenants contained in HPHA’s Declaration. Thus, according to respondents, although petitioners’ political signs were located on Town property, HPHA maintained the authority to enforce its sign restriction on this public land. Generally, the process of dedication is “of the nature of a gift by a private owner to the public” …, and dedication requires, among other things, “absolute relinquishment to public use by the owner” …. Thus, a town may acquire a road in fee through dedication “when there has been a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act [by public authorities] adopting the highway . . . coupled with a showing that the road was kept in repair or taken in charge by public authorities” (…see Highway Law § 171///).

While the record is devoid of evidence of the Town’s acceptance of ownership of the roads within the development, the parties do not dispute that the land in question is owned by the Town through dedication. The 1997 deed conveying certain property within the development from Hudson Pointe, Inc. to the Town, contained in the record, does not explicitly reserve to HPHA or Hudson Pointe, Inc. any interest in the conveyed property. In the absence of such reservation, respondents lack the authority to enforce HPHA’s sign restriction on Town land as a matter of law … . Matter of Jasinski v Hudson Pointe Homeowners Assn Inc, 2015 NY Slip OP 00274, 3rd Dept 1-8-15

 

Competing Expert Affidavits Raised a Question of Fact About Whether the Speed of Defendant’s Vehicle Was a Proximate Cause of the Accident—Plaintiff’s Vehicle Was Struck Broadside by Defendant’s Vehicle When Plaintiff Pulled Into Traffic–Supreme Court’s Grant of Summary Judgment to Defendant Reversed

The Third Department determined that plaintiff had raised a question of fact whether the speed of defendant’s vehicle was the proximate cause of the accident.  Plaintiff had pulled into traffic and was struck broadside by defendant. Supreme Court had granted defendant’s motion for summary judgment:

It is uncontested that plaintiff’s portion of the intersection was controlled by a blinking red light, and that she was therefore required to yield the right-of-way to oncoming vehicles that were “approaching so closely . . . as to constitute an immediate hazard” (Vehicle and Traffic Law § 1142 [a]; see Vehicle and Traffic Law § 1113 [a]). * * *

In opposition to defendant’s motion, plaintiff submitted the affidavit of a certified accident reconstructionist and former police officer. Using the same data as defendant’s expert, plaintiff’s expert concluded that, at the time defendant began braking, she was traveling at a faster speed of 49.95 mph, and he opined that had defendant not been exceeding the speed limit, plaintiff would have had sufficient time to safely clear defendant’s lane of travel and complete her turn. * * * The two experts utilized the same data and, while they arrived at different conclusions with respect to defendant’s speed, “a disagreement . . . between experts merely creates a question of credibility to be resolved by the finder of fact” … .

Upon a defendant’s motion, the evidence must be viewed in the light most favorable to the plaintiff … . It is well established that “there may be more than one proximate cause of an accident” … . Upon review, we find that plaintiff’s evidence gives rise to material issues of fact as to whether defendant’s speed was excessive and, if so, whether her speed was a proximate cause of the collision … . O’Brien v Couch, 2015 NY Slip OP 00273, 3rd Dept 1-8-15

 

,

Evidence Insufficient to Support Neglect Finding, Criteria Explained/Repetition of Child’s Out-of-Court Statement Does Not Corroborate It

In reversing Family Court’s finding of neglect, the Third Department explained the analytical criteria and noted that a child’s out-of-court statement about his alleged consumption of alcohol was not corroborated by the child’s repetition of the statement:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … . “In order for danger to be imminent, it must be near or impending, not merely possible” … , and regarding degree of care “the statutory test is minimum degree of care — not maximum, not best, not ideal” … .

…[W]e note that one factual determination made by Family Court as supporting its finding of neglect was that respondent allegedly pressured [the child] to take a sip of her eggnog and brandy beverage at the party. The child did not testify, but the court found that his out-of-court statement was sufficiently corroborated because he had made such a statement to two different adults, although he had both denied and affirmed the allegation to one of the adults. While the corroboration requirement is low …, “[i]t is well settled that ‘repetition of an accusation by a child does not corroborate [that] child’s prior account'” … . Here, the out-of-court repetition of the statement did not provide sufficient corroboration and the statement should not have been considered as part of the neglect determination. Matter of Cadence GG…, 2015 NY Slip OP 00261, 3rd Dept 1-8-15

 

Real Property Purchased by Husband Prior to the Marriage Cannot Be Transformed Into Marital Property, Despite’s Wife’s Contribution of Her Own Funds ($30,000) to the Purchase/Wife Entitled to Equitable Distribution of the Appreciation of the Property After Marriage But No Proof On that Topic Was Offered Here/Wife Entitled to Recoup Mortgage Payments Made by Her

The Third Department, in a full-fledged opinion by Justice Stein, over a dissent, determined that real property purchased prior to marriage cannot be transformed into marital property by contributions made by the non-titled spouse, although the appreciation in value of the property attributable to the efforts of the non-titled spouse could be the subject of equitable distribution (there was a failure of proof on that issue here), and funds paid toward the mortgage by the non-titled spouse could be recouped:

“‘[W]hether a particular asset is marital or separate property is a question of law'” … . Marital property is defined as “all property acquired by either or both spouses during the marriage” (Domestic Relations Law § 236 [B] [1] [c] [emphasis added]), while “property acquired before marriage” is separate property (Domestic Relations Law § 236 [B] [1] [d] [1] [emphasis added]). Here, the husband purchased the marital residence in January 1994 — 2½ years prior to the parties’ marriage — paying $130,000 of his own funds and borrowing an additional $100,000 from his father, secured by a note and mortgage. Although the wife contributed $30,000 of her separate funds to the initial purchase of the residence, she did not attend the closing and the husband took title to the property in his name alone. The record reflects that the wife thereafter paid the mortgage for more than two years prior to the marriage, as well as after the parties were married through 2003, when a satisfaction of mortgage was issued, notwithstanding a principal balance remaining of approximately $52,000. Supreme Court determined that the wife’s contributions transformed the residence from the husband’s separate property into marital property, which was subject to equitable distribution. …[W]e disagree. * * *

…[W]hile Supreme Court’s finding that the wife made certain substantial contributions of money and effort toward the acquisition and maintenance of the marital residence is amply supported by the record, the effect of such contributions by the wife — particularly those she made before the marriage — is not to transform the husband’s premarital, separate property into marital property … . *  *  *

We note, however, that separate property contributions by a nontitled spouse could result in an appreciation of the value of the titled spouse’s separate property during the marriage, which appreciation would be subject to equitable distribution … . Here, inasmuch as the wife failed to prove the value of the residence at the time the parties were married, the amount of the property’s appreciation during the marriage — and, hence, the wife’s equitable share thereof — cannot be ascertained …, and no award may be made on this basis … .

We agree, however, with the wife’s alternative argument that she is entitled to recoup her equitable share of marital funds paid toward the mortgage. It is well settled that, in determining the “equitable distribution of marital property, a court has the authority to effectively recoup marital funds applied to the reduction of one party’s separate indebtedness” … . Here, the wife testified that she paid the mortgage on the marital residence from the date of the marriage until a satisfaction of mortgage was issued. Although it is not evident from the record what funds were used to make these payments, it can be presumed that marital funds were used (see Carr v Carr, 291 AD2d 672, 676 [2002]). Thus, the wife is entitled to an equitable share of the marital funds that were used to pay the husband’s separate indebtedness — the mortgage — during the marriage… . Ceravolo v DeSantis, 2015 NY Slip OP 00266, 3rd Dept 1-8-15

 

,

Evidence Did Not Support Imposition of Supervised Visitation Re: Mother’s Older Children—Evidence Included Family Court’s Taking Judicial Notice of Neglect Findings Re: Mother’s Younger Children

The Third Department, in a full-fledged opinion by Justice Egan, determined Family Court’s imposition of supervised visitation between mother and her two older children was not supported by the evidence—evidence which included Family Court’s taking judicial notice of the neglect proceedings involving mother’s younger children:

As for the grounds upon which Family Court elected to impose supervised visitation, although Family Court indeed was entitled to take judicial notice of the three neglect proceedings brought against the mother with respect to [the older children’s] maternal half siblings, two of the three proceedings predated the 2011 custody order wherein Family Court — following a hearing — granted the mother (unsupervised) visitation with [the older children]. Additionally, nothing in the record suggests that derivative findings of neglect were sought with respect to [the older children] in any of the neglect proceedings brought against the mother. To the extent that Family Court further relied upon the mother’s allegedly unaddressed mental health and anger management issues, as well as her purported lack of stable housing, these conclusory and unsubstantiated hearsay statements — taken verbatim from the permanency hearing report prepared by one of petitioner’s caseworkers — are not, to our analysis, the type of evidence that may be invoked to significantly curtail the mother’s preexisting visitation rights with [the older children]. Finally, the sole witness to testify at the combined hearing was the mother, who detailed her visitation history with [the older children], revealed that she regularly exercised her visitation rights and indicated that such visits generally went well. Although the mother acknowledged that she and her teenage children did not always see eye to eye, the record as a whole fails to establish that affording the mother unsupervised visitation with [the older children] — who were 16 years old and 15 years old, respectively, at the time of the hearing — “would be inimical to the child[ren]’s welfare” … . Matter of Damian D…, 2015 NY Slip Op 00263, 3rd Dept 1-8-15

 

Real Property Purchased by Husband Prior to the Marriage Cannot Be Transformed Into Marital Property, Despite’s Wife’s Contribution of Her Own Funds ($30,000) to the Purchase/Wife Entitled to Equitable Distribution of the Appreciation of the Property After Marriage But No Proof On that Topic Was Offered Here/Wife Entitled to Recoup Mortgage Payments Made by Her

The Third Department, in a full-fledged opinion by Justice Stein, over a dissent, determined that real property purchased prior to marriage cannot be transformed into marital property by contributions made by the non-titled spouse, although the appreciation in value of the property attributable to the efforts of the non-titled spouse could be the subject of equitable distribution (there was a failure of proof on that issue here), and funds paid toward the mortgage by the non-titled spouse could be recouped:

“‘[W]hether a particular asset is marital or separate property is a question of law'” … . Marital property is defined as “all property acquired by either or both spouses during the marriage” (Domestic Relations Law § 236 [B] [1] [c] [emphasis added]), while “property acquired before marriage” is separate property (Domestic Relations Law § 236 [B] [1] [d] [1] [emphasis added]). Here, the husband purchased the marital residence in January 1994 — 2½ years prior to the parties’ marriage — paying $130,000 of his own funds and borrowing an additional $100,000 from his father, secured by a note and mortgage. Although the wife contributed $30,000 of her separate funds to the initial purchase of the residence, she did not attend the closing and the husband took title to the property in his name alone. The record reflects that the wife thereafter paid the mortgage for more than two years prior to the marriage, as well as after the parties were married through 2003, when a satisfaction of mortgage was issued, notwithstanding a principal balance remaining of approximately $52,000. Supreme Court determined that the wife’s contributions transformed the residence from the husband’s separate property into marital property, which was subject to equitable distribution. …[W]e disagree. * * *

…[W]hile Supreme Court’s finding that the wife made certain substantial contributions of money and effort toward the acquisition and maintenance of the marital residence is amply supported by the record, the effect of such contributions by the wife — particularly those she made before the marriage — is not to transform the husband’s premarital, separate property into marital property … . *  *  *

We note, however, that separate property contributions by a nontitled spouse could result in an appreciation of the value of the titled spouse’s separate property during the marriage, which appreciation would be subject to equitable distribution … . Here, inasmuch as the wife failed to prove the value of the residence at the time the parties were married, the amount of the property’s appreciation during the marriage — and, hence, the wife’s equitable share thereof — cannot be ascertained …, and no award may be made on this basis … .

We agree, however, with the wife’s alternative argument that she is entitled to recoup her equitable share of marital funds paid toward the mortgage. It is well settled that, in determining the “equitable distribution of marital property, a court has the authority to effectively recoup marital funds applied to the reduction of one party’s separate indebtedness” … . Here, the wife testified that she paid the mortgage on the marital residence from the date of the marriage until a satisfaction of mortgage was issued. Although it is not evident from the record what funds were used to make these payments, it can be presumed that marital funds were used (see Carr v Carr, 291 AD2d 672, 676 [2002]). Thus, the wife is entitled to an equitable share of the marital funds that were used to pay the husband’s separate indebtedness — the mortgage — during the marriage… . Ceravolo v DeSantis, 2015 NY Slip OP 00266, 3rd Dept 1-8-15

 

Relationship Between Mother and Father Had Not Deteriorated to the Extent that the Joint Custody Arrangement Should Have Been Modified to Award Sole Custody to Mother

The Third Department reversed Family Court’s award of sole custody to the mother in a modification proceeding:

“A parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since the entry of the prior order to warrant modification thereof in the child[]’s best interests” … . Although the requisite change in circumstances may be found to exist where “the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the child” …, the record before us falls short of establishing that the mother and father’s relationship has become so acrimonious as to preclude an award of joint custody. * * *

…[W]e note that the father’s stated basis for seeking sole custody stemmed not from an expressed or demonstrated inability to get along with the mother but, rather, from his concerns regarding the mother’s stability in light of her documented — and undisputed — mental health and alcohol dependency issues. Similarly, although the mother — both in the context of her modification petition and during the course of her testimony at the hearing — requested that Family Court alter the physical custody arrangement, she did not ask that Family Court award her sole custody of the child … . Under these circumstances, and inasmuch as the parties otherwise failed to demonstrate a sufficient change in circumstances to warrant modification of the prior custody order, Family Court erred in awarding sole legal and physical custody to the mother … . Matter of Dornburgh v Yearry, 2015 NY Slip OP 00260, 3rd Dept 1-8-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy