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Construction of Dock Could Not Be Regulated by Town—Land Under Navigable Waters Owned by State

The Third Department determined that the Lake George Town Planning Board did not have jurisdiction to grant or deny petitioner’s application to build a dock in Lake George because the state, not the town, owned the land under navigable waters:

When the state owns land under navigable waters in its sovereign capacity, its exclusive authority preempts local land use laws and extends beyond the regulation of navigation “to every form of regulation in the public interest.”… .  The state holds title to the lands under Lake George in its sovereign capacity  and, thus, has sole jurisdiction over construction in the lake’s navigable waters provided it has not delegated this authority to a local government … .

“[A]bsent the delegations in Navigation Law § 46-a allowing local municipalities to regulate the manner of construction and location of structures in waters owned by the [s]tate in its sovereign capacity, municipalities bordering or encompassing such waters . . . have no authority to issue such regulations”… . The Hart Family v Town of Lake George, 515142, 3rd Dept 10-24-13

 

Equipment Leases Are Not “Securities” for Purposes of Tax Law

In a detailed decision going into depth on many of the related issues, the Third Department determined that (1) leases of equipment which the customer has the option to buy at the end of the term and (2) installment sales of equipment in which title is conferred to the customer at the outset, both referred to as “financial agreements,” were not “securities” and therefore the related interest was not “investment income” within the meaning of Tax Law 208:

Business income is defined as “entire net income minus investment income” (Tax Law § 208 [8]); investment income, as relevant here, is defined as “income . . . [derived] from investment capital” less allowable deductions (Tax Law § 208 [6]), which is “investments in stocks, bonds and other securities, corporate and governmental, not held for sale to customers in the regular course of business” (see Tax Law § 208 [5] [emphasis added]).  The corporate franchise tax statutes do not offer a definition of the term security or the phrase “other securities.”  The [Tax] Department’s regulations provide that the phrase “stocks, bonds and other securities,” among other things, means “debt instruments issued by . . . government[s]” (20 NYCRR 3-3.2 [c] [2]).  Petitioner’s main argument is that the finance agreements in issue constitute such debt instruments and, thus, the income derived therefrom is investment income under Tax Law § 208 (5) and (6).  The [Tax Appeals] Tribunal rejected this interpretation, and we confirm.  Xerox Corp v NYS Tax Appeals Tribunal, 514464, 3rd Dept 10-24-13

 

Letters Between Attorney and City Re: Fees Did Not Create Unilateral Contract

The Third Department affirmed the dismissal of a complaint seeking attorneys fees from the City for the defense of a police officer who allegedly pointed a loaded weapon at a coworker.  At one point the City and the defense attorney exchanged letters concerning the lawyer’s fees and the City offered to pay the defense attorney $150.00 an hour.  The breach of contract cause of action was based on those letters.  In addition to determining there was no contract, the Third Department explained the flaws in the promissory estoppel, unjust enrichment, quantum meruit and fraud causes of action. In finding that the letters did not constitute a contract, the Third Department wrote:

“For a contract to be created, regardless of whether it is bilateral or unilateral, ‘there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms'” … . Price is a material term of a contract … ..

The complaint here alleges that [the City’s] letters constituted a unilateral contract whereby [the City] agreed to pay [defense counsel] at the rate of $150 per hour, and that the contract became binding when [defense counsel] performed under the contract by representing [the officer].  Plaintiffs cannot prevail because their allegations are flatly contradicted by documentary evidence.  [Defense counsel’s] invoice billed defendant at the rate of $350 per hour for his time and at other rates – all higher than listed in his ….estimate – for his staff.  This invoice contradicts plaintiffs’ assertion that the parties had agreed on all material terms of a contract, namely a price of $150 per hour … .   As documentary evidence refutes the allegations and establishes that no valid contract had been formed, Supreme Court properly dismissed the cause of action for breach of contract… . DerOhannesian v City of Albany, 515875, 3rd Dept 10-24-13

 

Relocation Criteria Explained

In affirming the grant of father’s petition to relocate with the child, the Third Department explained the criteria:

The party seeking to relocate with a child – here, the father – bears the burden of establishing by a preponderance of the credible evidence that the relocation is in the child’s best interests … .  Family Court must consider a number of relevant factors in making this determination, including “‘each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the [nonmoving] parent, the degree to which the [moving] parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [non-moving] parent and child through suitable visitation arrangements'” … .  Notably, as “Family Court is in the best position to make factual findings and credibility determinations, its decision will not be disturbed if it is supported by a sound and substantial basis in the record” … .  Matter of Cole v Reynolds, 514712, 3rd Dept 10-24-13

 

Sex Offender Status Not Enough to Support Neglect Finding

The Third Department reversed Supreme Court’s finding of neglect against respondent mother for leaving the children with the father unsupervised.  The father was a sex offender who failed to complete sex offender treatment and was previously found to have neglected the children by Supreme Court on that and other grounds.  In the prior appeal of the father’s neglect finding, the Third Department reversed Supreme Court and determined the father’s status as a sex offender was insufficient to support a finding he neglected the children and the other factors relied upon by the court lacked a sound and substantial basis in the record.  Because of those prior rulings, a finding of neglect against the mother based on leaving the children unsupervised with the father had to be reversed:

Inasmuch as the finding of neglect against respondent was premised on her permitting the father to have unsupervised contact with the children, it would be completely illogical to conclude that the subject children’s “physical, mental or emotional condition [had] been impaired or [was] in imminent danger of becoming impaired as a result of the failure of [respondent] . . . to exercise a minimum degree of care . . . in providing the child[ren] with proper supervision or guardianship” (Family Ct Act § 1012 [f] [i] [B]), when we previously determined that petitioner failed to prove that the father posed a risk of imminent danger to them (Matter of Hannah U. [Dennis U.], 97 AD3d at 909).  Thus, for the same reasons that led us to reverse the finding of neglect as to the father, we similarly conclude that petitioner failed to prove by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]) that respondent neglected the subject children as alleged in the petition … .  Matter of Hannah U …, 514024, 3rd Dept 10-24-13

 

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Question of Fact About Whether Rider Assumed Risk of Being Kicked by Horse—Allegations Defendant Heightened Risk

The Third Department there was a question of fact whether plaintiff assumed the risk of being kicked by defendant’s horse.  Plaintiff alleged the risk was heightened by defendant’s actions:

While it has been recognized that participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  “‘[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct'” … .

Here, plaintiffs have raised triable issues of fact by offering evidence that defendant’s attendant assisted plaintiff in mounting her assigned horse, and the attendant then positioned the head of her horse within six inches of the tail of the horse in the line in front of her.  The attendant then was called away and, in leaving, he ducked under the head of plaintiff’s horse, causing it to nudge the horse in front of it.  The horse in front then kicked back, striking plaintiff in the leg and injuring her. Defendant’s co-owner acknowledged that the positioning of horses is an important safety concern and that horses should be spaced approximately one horse length apart.  Thus, while being kicked by a horse is an obvious risk of horseback riding, and plaintiff, although an inexperienced rider, was aware of the risk, issues of fact exist as to whether defendant’s alleged actions in positioning the horses and then ducking under the head of plaintiff’s horse heightened the risk of injury to an inexperienced rider… . Valencia … v Diamond F Livestock, Inc…, 516434, 3rd Dept 10-24-13

 

Court Should Have Held Lincoln Hearing to Learn Preferences of 12-Year-Old Child

The Third Department remitted the matter to Family Court for a Lincoln hearing to determine the preferences of the 12-year-old child with respect to custody:

While the decision whether to conduct such a hearing lies within the court’s discretion …, it is often the preferable course … .  In this case, the court originally indicated that it intended to speak with the child and later reiterated this position.  While we can assume that the court ultimately decided that an interview with the child was not warranted or appropriate, the record is bereft of any articulation or explanation for such decision.

Additionally, we cannot ascertain from the record whether Family Court failed to consider the child’s wishes with respect to spending time with her father or whether it considered the child’s wishes, but rejected them as a basis for a modification. While Family Court stated in regard to the violation petition that the child’s wishes did not excuse the mother from complying with the existing orders, it is not clear to what extent, if any, this conclusion played in the court’s determination regarding the modification petition.  To be sure, the wishes of this 12-yearold child were “at minimum, entitled to consideration” …, and the record does not reflect whether such consideration was given to the child’s wishes.  As a result, and because we conclude that a Lincoln hearing is called for under the circumstances here … , we must remit the modification petition to Family Court. Matter of Yeager v Yeager, 515860, 3rd Dept 10-17-13

 

Father Not Denied Due Process by Absence from Portion of Neglect Proceeding

In affirming Family Court’s finding that the parents had permanently neglected their daughter, the Third Department noted that father had not been denied due process based on his absence from some of the proceedings:

We reject the father’s assertion that his due process rights were violated when Family Court proceeded with a portion of the fact-finding hearing in his absence.  Although a parent in a proceeding seeking to terminate parental rights has a right to be present for all stages of the proceeding, that right is not absolute … .  On the second day of the factfinding hearing, the father’s counsel appeared and informed the court that his client would not be present due to health reasons. Rather than request an adjournment, counsel affirmed that the father’s attendance at the hearing “would not be required today,” requested another hearing date – which the court agreed to schedule – so as to allow the father to testify, and thereafter actively participated in the hearing.   Under these circumstances, we discern no error in Family Court’s decision to proceed with the hearing in the father’s absence or any prejudice inuring to the father as a result thereof… . Matter of Arianna BB…, 2013 NY Slip Op 06758, 3rd Dept 10-17-13

 

Order Prohibiting Visitation Unless Recommended by Therapist Improper

The Third Department affirmed Family Court’s neglect finding but determined the order prohibiting visitation unless recommended by a therapist improperly delegated the court’s authority to make determinations in the best interests of the child:

…[W]e find merit to respondent’s argument that Family Court’s order prohibiting visitation except “as therapeutically recommended or attendance at therapy with [the child] as recommended by a therapist after review by . . . Family Court” constitutes an improper delegation of the court’s authority to make determinations on the issue of the best interests of the child … .  Although the record contains some indication that Family Court recognized and attempted to avoid this delegation, the order failed to require further review unless triggered by the therapist, and did not direct the child to attend therapy with respondent unless recommended by the therapist.  As the order thus makes the recommendation of a therapist a prerequisite for any visitation, we find that there was an improper delegation of the court’s authority, and the matter is therefore remitted to Family Court for further proceedings regarding the issue of visitation… . Matters of Alisia M…, 515188, 3rd Dept 10-17-13

 

Family Court Properly Assumed Jurisdiction Over California Order

In affirming Family Court’s dismissal of mother’s petition for a modification of custody, the Third Department noted that Family Court properly assumed jurisdiction over a California custody order:

Family Court properly assumed jurisdiction over this proceeding.  As California no longer had exclusive continuing jurisdiction over this matter (see 28 USC § 1738A [d]), New York could assume jurisdiction for the purpose of modifying the California order so long as it “[was] the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state” (Domestic Relations Law § 76 [1] [a]; see Domestic Relations Law § 76-b).  “Home state” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a [7]).   Matter of Clouse v Clouse, 514987, 3rd Dept 10-17-13

 

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