In this foreclosure action, the Third Department determined failure to raise plaintiff’s lack of standing in either the answer or the pre-answer motion to dismiss the complaint constituted a waiver of the defendant’s standing argument. HSBC Bank USA v Ashley, 513730, Third Dept. 3-7-13
A question of fact precluded summary judgment denying probate where there was evidence the decedent did not intend to revoke a will that could not be found after her death. There is a presumption that a will that was last in decedent’s possession but can not be found after death has been revoked. But in this case there was evidence that the decedent was, close in time to her death, taking steps to dispose of her property in accordance with her will, which expressly disinherited one of her four children. Matter of DiSiena, et al, 515209, Third Dept. 2-28-13
In this case, the Third Department included a clear description of the proof requirements for tortious interference with contract. Schmidt & Schmidt vs. Town of Charlton, 515053 Third Dept. 2-21-13
No appeal as of right lies from an order for an in camera inspection of documents (to address a discovery request) where the inspection had not yet been conducted. “Inasmuch as the order does not affect a substantial right of plaintiff, no appeal as of right lies therefrom…”. In addition, the Third Department determined that the facts alleged would not support an application for permission to appeal. Soloman vs Meyer. 515208 Third Dept. 2-21-13
Resentencing was required where the sentencing judge indicated the five-year post-release supervision was mandatory. There was, however, an applicable exception to the five-year rule which the judge had the discretion to impose. (Penal Law section 70.45 former [2]). People vs Whitmore, 104652 Third Dept. 2-14-13
The Third Department described the proper procedure for a petition for the modification of a SORA level pursuant to Correction Law section 168-o. Both an updated recommendation of the Board of Examiners and a hearing are required. People vs Hazen, 514028 Third Dept. 2-14-13
The Third Department applied the “relation back” doctrine (see CPLR 203(f)) to allow the amendment of a complaint to include causes of action that otherwise would have been time-barred. US Bank National Association vs Gestetner, et al, 514808 Third Dept. 2-14-13
The Third Department held that a reversal of the NYS Office of Victim Services determination was required because the respondent Office heard the testimony of two witnesses in the absence of the petitioner, thereby depriving her of her right to cross-examine witnesses, a right which applies to a quasi-judicial administrative hearing. Matter of Barber vs NYS Office of Victim Services, 513256 Third Dept. 2-14-13
This case, which was not affected by the 2010 amendment to Family Court Act section 451(2)(a), includes a clear discussion of the criteria for an upward modification of a child support obligation where a party is seeking to modify “a child support provision derived from an agreement or stipulation incorporated but not merged into a divorce decree…”. The party seeking modification “has the burden of proving that the agreement was unfair or inequitable when entered into or that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the child are not being adequately met…”. Matter of Overbaugh vs Schettini, 515079 Third Dept. 2-14-13
A finding of neglect based upon the respondent’s allowing the mother of the children to drive with the children when she was intoxicated (.10%) was affirmed by the Third Department. Matter of Darcy Y., 514430 Third Dept. 2-14-13
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