You are here: / Third Department

Tag Archive for: Third Department

,

Finding that No Environmental Impact Statement (EIS) Needed for Proposed Wind Turbines Reinstated; But Denial of Special Use Permit Upheld

The Third Department reversed Supreme Court’s annulment of a negative declaration with respect to the need for an environmental impact statement (EIS) for a proposed wind turbine installation, but upheld Supreme Court’s denial of a special use permit based on violations of the Town Law’s public hearing and notice requirements (among other grounds).  In describing the review standards for the respondent planning board’s determination an EIS was not required, the Third Department wrote:

….[W]e begin our analysis by noting that an environmental impact statement (hereinafter EIS) is required “‘on any action . . . which may have a significant effect on the environment'”….   A  type I action, such as the project here, “carries with it the presumption that it is likely to have a significant adverse impact on  the environment” (6  NYCRR  617.4 [a] [1];…).   However,  when  a lead agency  “‘determine[s] either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant,'” it may  issue a negative declaration and, in such instance, no  EIS is required…. “Although the threshold triggering an EIS is relatively low”…, judicial review of a negative declaration is limited to whether “the [lead] agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination”….  In this regard, “[i]t is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence”…. Matter of Frigault v Town of Richfield Planning Board, et al, 515528, 3rd Dept 6-27-13

 

,

Plaintiffs Demonstrated They Acquired Title to Property with Cabin by Adverse Possession

The Third Department affirmed Supreme Court’s grant of summary judgment to plaintiffs in their RPAPL article 15 action to quiet title under the doctrine of adverse possession.  The owner of the property, which included a cabin, died intestate and plaintiffs, who allegedly were close personal friends with the owner’s brother (who used the cabin and also died intestate), took possession of the property.  The Third Department wrote:

…[T]o successfully acquire title by adverse possession, plaintiffs must establish by clear and convincing evidence that their occupation of the property was “(1) hostile and under a claim of right . . ., (2) actual, (3) open and notorious, (4) exclusive, and  (5) continuous for the statutory period (at least ten years)” … .  Additionally, because plaintiffs’ “claim was not founded upon a written instrument describing the boundaries of the property,” they were required to “establish that the land was usually cultivated or improved or protected by  a substantial inclosure….In support of their motion for summary judgment, plaintiffs submitted evidence that, since the time of [the owner’s brother’s] death in 1976, they have enjoyed the exclusive use and possession of the property, have paid the taxes and made repairs upon the property, and have permitted various family members to use and reside upon the property.  In 1990, plaintiffs improved the cabin to make it suitable for year-round use, and have used it throughout the year since that  time.  According to plaintiffs, no one  else has had  possession or control of the property since they first took it more than 35 years ago.  Quinlan v Doe, 516140, 3rd Dept 6-27-13

 

Validity of Easement for Access to Lake Affirmed

In affirming Supreme Court’s determination that the relevant deed allowed recreational use of a parcel of land (parcel 4) for access to a lake, and Supreme Court’s order to remove a fence which blocked access, the Third Department explained the relevant legal principles as follows:

“[T]he construction of a  deed, including  any  easements  set  forth  therein,  is generally  a question of law for the court, with extrinsic evidence being considered only if there are ambiguities”….  As owners  in the subdivision, plaintiffs’ deed sets forth various rights regarding parcel 4, including swimming privileges, docking privileges and – as relevant here – recreational  privileges. The recreational right is broadly set forth as having “the right to use, for recreational purposes, Parcel #4.” Significantly, this is not a  right merely  to cross parcel 4 to reach the lake. Consistent with the expansive right granted, subdivision owners exercised the recreational right in sundry manners, such as having picnics in various places on parcel 4 or placing chairs on the parcel to enjoy the view. Once on parcel 4, there is no relevant limitation – other than reasonableness and safety – as to where on the parcel subdivision owners  exercised their recreational rights (see generally Bruce and Ely, The Law of Easements and Licenses in Land, Location and Dimensions  of  Easements  §  7:3).  Jankowski v Lake Forest Homeowners, Inc, 516015, 3rd Dept 6-27-13

 

Absence of Complete Financial Disclosure Did Not Preclude Family Court from Making “Change-of-Circumstances” Determination

The Third Department affirmed Family Court’s modification of the father’s support obligation in the absence of complete financial disclosure because reliable financial evidence was in the record:

Although Family Court was entitled to deny the father’s requested relief based upon  his failure to comply with Family Ct Act § 424–a, this Court has approved orders of support in the absence of complete financial disclosure where reliable evidence otherwise has appeared on  the face of the record…. Here,  the father’s sworn statement of net worth and testimony, the latter of which was subject to examination by the Support Magistrate and cross-examination by the mother, was sufficient to demonstrate the requisite change in circumstances.  Matter of Mata v Nebesnik, 516104, 3rd Dept 6-27-13

 

Family Court Cannot Review Support Magistrate’s Order in Absence of Specific Objection

In reversing Family Court, the Third Department explained that Family Court does not have the authority to review those portions of a Support Magistrate’s order to which no specific objection his been made:

It is well established that “an order from a Support Magistrate is final and  Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires  specific  objections  for  issues  to  be  preserved”  ….  Family Court therefore lacked the authority to review the  order  dismissing  the  mother’s  first modification  petition,  to which no  objections had  been  filed… .  Matter of Hubbard v Barber. 515420, 3rd Dept 6-27-13

 

,

Denial of Request to Take Child’s Testimony Outside Parents’ Presence Was Abuse of Discretion

The Third Department noted that it was an abuse of discretion to deny the request for a Lincoln hearing in a custody proceeding (allowing a child to testify outside the parties’ presence):

Although not an issue directly raised on appeal, the attorney for the child and the father both requested that Family Court hold a Lincoln hearing … rather than require the child to testify in open court.  Unfortunately, this request was denied and, after the mother refused to consent to the child testifying outside of the parties’ presence, the child had to testify under oath in front of both parents. While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate…, it was clearly an abuse of discretion for the court to put the child in this awkward position… . We again emphasize that “‘a child . . . should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them'” when explaining the reasons for his or her preference…. Given the circumstances of this case and the fact that – at her age [14]– her preference would  be  entitled to great weight, the record indicates that a Lincoln hearing would have limited the risk of harm and “would have been far more informative and worthwhile than . . . an examination of the child under oath in open court”… . Matter of Casarotti v Casarotti, 515270, 3rd Dept 6-27-13

 

 

Default Judgment against Mother for Failure to Appear Reversed

In vacating a default judgment entered against the mother who failed to appear in a custody and visitation proceeding, the Third Department noted that, in her motion to vacate, the mother offered a reasonable excuse for not appearing (car broke down), and the best interests of the child would be served by a plenary hearing:

“We must remain vigilant that the ultimate issue here is what is in [the children’s] best interest[s], not whether [the mother] should be punished for her actions”….  Here, the lack of a full hearing to determine the best interests of the children, a determination in which Family Court “is bound to assess numerous  factors,” constitutes a meritorious defense …. Accordingly, the default judgment entered against the mother must be vacated, and the matter remitted for further proceedings… .  Matter of Brown v Eley, 514981, 3rd Dept 6-27-13

 

Family Court’s Finding Father in Default for Nonappearance Reversed

In reversing Family Court’s finding the father in default for nonappearance in a custody and visitation modification proceeding, the Third Department noted that the father’s counsel did not tell the father his appearance was required and the court made no attempt to reach the father by phone:

The nonappearance of a party does not necessarily result in a default, “particularly where counsel appears upon the absent party’s behalf and offers an  explanation for his or her failure to attend”.   The father’s counsel stated that, while the father had elected not  to appear, counsel had  not  informed  him  that his appearance  was  necessary.  Family Court did not challenge the accuracy of that representation and, moreover, made no effort to reach the father telephonically or by other means.  Under these circumstances, Family Court erred in holding that the father’s nonappearance constituted a default …  Matter of Freedman, 514882, 414883, 3rd Dept 6-27-13

 

, ,

Family Court Could Not Countermand County Court’s Order of Protection

The Third Department noted that Family Court can not countermand County Court’s order of protection stemming from the father’s assault of the mother.  Therefore, Family Court could not require the mother to facilitate the reading of the father’s letters to the child:

Family Court does not have jurisdiction to countermand the provisions  of a  criminal court  order  of protection ….  Considering that “an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims”…, the criminal court order of protection would have to be modified, if deemed appropriate by County Court, before Family Court would be authorized to require the mother to accept, read or facilitate the reading of the father’s communications to the child.  Matter of Samantha WW v Gerald XX, 513853, 3rd Dept 6-27-13

 

,

Events Before Last Custody Order Could Be Considered re: “Best Interests of Child” Even Though Only Post-Custody-Order Events Can Be Considered re: “Change of Circumstances”

In upholding Family Court’s custody ruling, the Third Department noted that events which occurred before the last custody order could be considered with respect to the best interests of the child:”

Family Court did not err in considering evidence of events that occurred before the entry of the prior custody order. Although  the inquiry as to whether  a substantial change  in circumstances has occurred should be limited to occurrences since the date of the prior custody order…, a best interests inquiry is broader and may include other facts that give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party’s fitness as a parent….  As less weight  is afforded to a stipulated order, admission of evidence concerning previous behavior or events is especially proper where no prior plenary hearing has been held and the prior order was issued on consent…. Here, Family Court did not abuse  its broad  discretion in determining the scope of the proof….  Matter of  Smith…, 513811, 3rd Dept 6-27-13

 

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