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EVIDENCE OF ABUSE OR NEGLECT OF ANOTHER CHILD IS ADMISSIBLE IN A MODIFICATION OF CUSTODY PROCEEDING; ALTHOUGH CHILD PROTECTIVE SERVICES RECORDS REGARDING NEGLECT ARE HEARSAY, THE HEARSAY IS ADMSSSIBLE IF CORROBORATED (THIRD DEPT).

The Third Department, reversing Family Court in this modification of custody proceeding, determined it was error to exclude Child Protective Services (CPS) records regarding mother’s alleged neglect of another child. Family Court excluded the records because the proceeding was not a neglect proceeding and because the evidence was hearsay. The Third Department noted that evidence of abuse or neglect is admissible in a custody proceeding and hearsay is admissible if corroborated:

The agency records that the father sought to admit are not in the record and, thus, not before this Court. A review of the father’s modification petition reveals that he noted CPS’s involvement with the mother and cited to such as establishing a change in circumstances. Specifically, he alleged there had been “ongoing child protective involvement in the [mother’s] home[,]” that the subject child has indicated there is domestic abuse taking place in the home and that the child has reported that he is being neglected by the mother. The petition states that “it was revealed through the CPS open investigation that the child is reporting that there is no food at the [mother’s] home and that he goes without meals.” Based on the foregoing, Family Court erred in refusing to allow the CPS records into evidence based upon the rationale that no hearsay exception existed for abuse and neglect allegations in a Family Ct Act article 6 proceeding. In this respect, although this is not a Family Ct Act article 10 proceeding, the law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence . As such, this case must be reversed and remitted to Family Court for the admission of such evidence at a new fact-finding hearing on the parties’ modification petitions. Matter of Sarah QQ. v Raymond PP., 2022 NY Slip Op 06659, Third Dept 11-23-22

Practice Point: Evidence of abuse or neglect of another child is admissible in a modification of custody proceeding. Although agency records concerning neglect are hearsay, the records would be admissible if the hearsay is corroborated.

 

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THE THREATS ALLEGEDLY MADE TO PETITIONER WERE NOT MADE IN PUBLIC AND THERE WAS NO EVIDENCE THE THREATS WERE MADE WITH THE INTENTION TO CAUSE A PUBLIC DISTURBANCE; THEREFORE THE FAMILY OFFENSE PETITION ALLEGING DISORDERLY CONDUCT SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the alleged threats against petitioner were made privately and did not create a public disturbance. In addition, there was no proof the alleged threats were made with the intent to cause a public disturbance. Therefore the petition alleging disorderly conduct as a family offense should have been dismissed:

… “[A] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] . . . [h]e [or she] engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20 [1]). Pursuant to both CPL 530.11 (1) and Family Court Act § 812 (1), “‘disorderly conduct’ includes disorderly conduct not in a public place.” Yet, “even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct” … . * * *

… [P]etitioner failed to meet her burden of making a prima facie showing that respondent had the requisite intent to create public inconvenience, annoyance or alarm, or recklessly causing a risk of the same … . In this respect, petitioner’s evidence does not establish that respondent’s actions were public in a manner that would support such a finding … . Respondent’s threat against petitioner’s life would have undoubtedly caused public disorder if others had heard the threat … ; however, the record reveals that respondent appears to have threatened petitioner’s life in only their company, and without having drawn the attention of others to the scene … . Further, although the police were called on one instance, without a police report in evidence, it is impossible to determine which one of the parties — or if, in fact, a neighbor — had called the police to therefore permit a finding that respondent’s conduct rose to the level of creating a public disturbance. Matter of Kilts v Kilts, 2022 NY Slip Op 06660, Third Dept 11-23-22

Practice Point: To prove the family offense of disorderly conduct, the conduct must occur in public or must have been motivated by the intention to cause a public disturbance. The petitioner did not meet her burden of proof and the family offense petition should have been dismissed.

 

THE NINE YEARS OF PENSION CREDITS THE HUSBAND EARNED BEFORE THE MARRIAGE ARE HIS SEPARATE PROPERTY; HOWEVER THE MARITAL FUNDS USED TO PURCHASE THOSE CREDITS DURING THE MARRIAGE ARE SUBJECT TO EQUITABLE DISTRIBUTION (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this divorce proceeding, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the pension credits earned by the husband during the nine years prior to the marriage were his separate property. But the marital funds used to purchase those credits during the marriage were subject to equitable distribution:

“[A] pension benefit is, in essence, a form of deferred compensation derived from employment and an asset of the marriage that both spouses expect to enjoy at a future date” … . “Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. Thus, that portion of a pension based on years of employment during the marriage is marital property” … . In effecting the intent of Domestic Relations Law § 236 (B), the Court of Appeals held that “these post-divorce benefits were marital property to the extent that they were compensation for past services rendered during the marriage” … . Accordingly, “it becomes evident that an employee’s interest in such a plan, except to the extent that it is earned before marriage or after commencement of a matrimonial action, is marital property” … . * * *

… [C]ompensation for past services earned prior to the marriage is separate property. The nine years of premarriage … credits were earned outside the marriage and are based on the fruit of the titled spouse’s sole labors. As they are not due in any way to the indirect contributions of the non-titled spouse … , the wife’s contention that she is entitled to an equitable share of any “appreciation” in the value of credits that have been classified as the husband’s separate property is unpersuasive. The acquisition of the separate pension credits cannot serve to transform such property into a marital asset.

… [A]s marital funds were utilized to purchase the pension credits, said funds are subject to equitable distribution. Szypula v Szypula, 2022 NY Slip Op 06664, Third Dept 11-23-22

Practice Point: The husband earned nine years of pension credits before the marriage. Those pension credits are husband’s separate property. During the marriage the pension credits were purchased with marital funds. [T]hose funds are subject to equitable distribution.

 

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FAMILY COURT’S BEST INTERESTS RULING IN THIS MODIFICATION OF CUSTODY PROCEEDING DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD; THE APPELLATE DIVISION AWARDED PRIMARY PHYSICAL CUSTODY TO MOTHER (THIRD DEPT). ​

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody should have been granted:

Having concluded that Family Court’s determination lacks a sound and substantial basis in the record, we are empowered to make our own independent determination of the child’s best interests, and our authority in that regard is as broad as that of Family Court … . In reviewing the record, we note that the mother testified without contradiction that she does not abuse alcohol or drugs, and while she previously struggled with her mental health, the hearing evidence showed that she has overcome that challenge and achieved a stable home life. By contrast, we find problematic the evidence of the father’s regular drinking in the child’s presence and his apparent lack of candor during the DWI assessment, as well as the dirty and unkempt condition of his apartment. We also find significant the strong position of the appellate attorney for the child in support of the mother’s petition … . In light of the foregoing, we hold that the child’s best interests are served by having the parents continue to share joint legal custody but awarding primary physical custody to the mother, with parenting time for the father as the parties shall mutually agree … . Matter of Brittni P. v Michael P., 2022 NY Slip Op 06667, Third Dept 11-23-22

Practice Point: The appellate court, reversing Family Court, held the evidence did not support Family Court’s best interests ruling continuing primary physical custody with father. The appellate court undertook its own analysis of the record and awarded primary physical custody to mother.

 

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PURSUANT TO LABOR LAW SECTION 511, THE NEW YORK CITY SUPPER CLUB WAS NOT THE EMPLOYER OF THE MUSICIANS, DANCERS AND OTHER PERFORMERS WHO ENTERTAINED AT THE CLUB; THEREFORE THE CLUB WAS NOT OBLIGATED TO MAKE UNEMPLOYMENT INSURANCE CONTRIBUTIONS ON BEHALF OF THE PERFORMERS (THIRD DEPT).

​The Third Department, reversing the Unemployment Insurance Appeal Board, determined that the musicians, dancers and other artists who performed at a New York City supper club (Griffs) were not employees of the club under Labor Law 511. Therefore the club was not obligated to make additional unemployment insurance contributions with respect to those performers:

Pursuant to Labor Law § 511 (1) (b) (1-a), the term employment includes “any service by a person for an employer . . . as a professional musician or a person otherwise engaged in the performing arts, and performing services as such for a . . . restaurant, night club or similar establishment unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by [the Labor Law]” … . “The statute, which was designed to extend the availability of unemployment insurance and workers’ compensation benefits to those in the performing arts, creates a rebuttal presumption of employment” … — a presumption that may be rebutted by a written contract establishing that the performer in question is the employee of another covered employer … . …

… [T]he sole contested issue is whether a provision contained within the written agreements executed by the performers established that they were “employee[s] of another employer covered by [the Labor Law]” (Labor Law § 511 [1] [b] [1-a]). To that end, paragraph No. 8 of the performers’ contracts with Griffs provides, in relevant part, that Griffs “is not nor shall become [the performers’] employer, as other corporations employ them” … . Matter of Griffs Global Corp. (Commissioner of Labor), 2022 NY Slip Op 06670, Third Dept 11-23-22

Practice Point: Under Labor Law 511 the musicians, dancers and other performers who entertained at the New York City supper club were not employees of the club because their contracts stated they were employees of other corporations. Therefore, the club was not required to make unemployment insurance contributions on behalf of the performers.

 

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PLAINTIFF BANK’S 2017 DE-ACCELERATION LETTER IN THIS FORECLOSURE ACTION WAS NOT AMBIGUOUS AND THEREFORE SERVED TO STOP THE RUNNING OF THE STATUTE OF LIMITATIONS TRIGGERED BY THE INITIAL FORECLOSURE ACTION IN 2012; THEREFORE THE SECOND FORECLOSURE ACTION BROUGHT IN 2018 WAS TIMELY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Fisher, determined plaintiff bank’s 2017 de-acceleration letter was not ambiguous and served to stop the running of the statute of limitations triggered when the mortgage loan was accelerated by initial the 2012 foreclosure action:

… [P]laintiff submitted … a copy of the September 27, 2018 de-acceleration notice sent by the mortgage servicer, indicating that “we hereby revoke any prior acceleration of the loan, withdrawing any prior demand for immediate payment of all sums secured by the security instrument and re-institute the loan as an installment loan” … . The notice advised that defendants could resume making monthly payments, which would now be accepted by plaintiff, and further provided that defendants “also have the right to pay the monthly payments that came due prior to and would have come due during the prior acceleration, which has not been revoked.” …

Supreme Court found, that this … language — “which has not been revoked” — made the entire notice unclear and ambiguous, we disagree. Such statement was advising defendants of their right to satisfy the arrears and their continuing obligation to make monthly payments; the next sentence in the notice warned that, if defendants failed to “cure the payments in arrears,” plaintiff reserved the right “to accelerate the loan anew.” To this end, defendants’ claim that this language is inconsistent with the monthly statements sent before and after the de-acceleration notice is belied by the record, which confirms that such statements sought payment on the total amount of the arrears plus the monthly mortgage payment, and not the total principal of the mortgage. HSBC Bank, USA, N.A. v Bresler, 2022 NY Slip Op 06671, Third Dept 11-23-22

Practice Point: In a foreclosure action, a de-acceleration letter will stop the running of the statute of limitations as long as the letter is clear and unambiguous. Here Supreme Court found the letter ambiguous and, therefore, ineffective; but the Third Department disagreed.

 

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IN THIS MODIFICATION OF CUSTODY PROCEEDING, MOTHER’S PROOF OF THE CHILD’S INJURIES IN FATHER’S CARE AND HER IMPROVED PARENTING SKILLS AND LIVING CONDITIONS WAS SUFFICIENT TO WITHSTAND FATHER’S MOTION TO DISMISS; THE JUDGE APPEARS TO HAVE PREJUDGED THE CASE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case to a different judge, determined mother’s petition for a modification of custody should not have been dismissed:

“A parent seeking to modify an existing custody order must first show that a change in circumstances has occurred since the entry of the existing custody order that then warrants an inquiry into what custodial arrangement is in the best interests of the child” … .. “Only after this threshold hurdle has been met will the court conduct a best interests analysis” … . “When, as here, Family Court is tasked with deciding a motion to dismiss at the close of the petitioner’s proof, the court must accept the petitioner’s evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner’s favor” … . * * *

After reviewing the record, we find that the mother’s proof regarding injuries suffered by the child during the father’s parenting time, taken together with the mother’s improved parenting abilities and living conditions, demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . * * *

Based on Family Court’s comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appears to have prejudged the case … . Therefore, this matter must be remitted for a new hearing before a different judge. Matter of Nicole B. v Franklin A., 2022 NY Slip Op 06672, Third Dept 11-23-22

Practice Point: Here the evidence of the child’s injuries in father’s care and mother’s improved parenting skills and living conditions was sufficient to support her petition for a modification of custody. Father’s motion to dismiss the petition should not have been granted. The judge’s remarks about mother’s credibility and his encouraging father to make a motion to dismiss indicated the judge had prejudged the case. The matter was sent back to be heard by a different judge.

 

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THERE WAS NO EVIDENCE DEFENDANT WAS AWARE OF THE SPONTANEOUS USE OF A KNIFE BY THE PERPETRATOR IN THIS MURDER CASE; THE EVIDENCE DEFENDANT SHARED THE PERPETRATOR’S INTENT, THEREFORE, WAS INSUFFICIENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction for murder under an accomplice theory, determined the evidence defendant shared the intent of Mack, who stabbed the victim, was insufficient:

To hold a person responsible for the criminal conduct of another, the People must demonstrate that “when, acting with the mental culpability required for the commission thereof, he [or she] solicit[ed], request[ed], command[ed], importune[d], or intentionally aid[ed] [the principal] to engage in such conduct” (Penal Law § 20.00 …). In other words, when proceeding “under an acting in concert theory, [the People must prove that] the accomplice and principal [shared] a ‘community of purpose'” … . Moreover, in the case of willful homicide, “a spontaneous and not concerted or planned use of [a] weapon to kill is not, without more, attributable to the companion whose guilt in a joint design to effect death must be established beyond a reasonable doubt” … . In this respect, “[i]t is essential that the intent by [the defendant] to kill be fairly deducible from the proof and that the proof exclude any other purpose” … . …

The sole eyewitness testimony presented by the People established that the altercation between Mack and the victim began as a fist fight until the victim gained the upper hand and knocked Mack to the ground. When Mack got up, he began swinging wildly at the victim, at which point the eyewitness first observed that Mack had a knife in his hand, which had become visible because of the lights from neighboring establishments. The witness testified that he had not seen the knife prior to the victim knocking Mack down and no other evidence presented at trial established that the knife was visible prior to that point. * * *

Even viewing the evidence in the light most favorable to the People … , we find that the jury would have been required to speculate that defendant had become aware of Mack’s spontaneous use of a knife during the altercation … . People v Jenkins, 2022 NY Slip Op 06652. Third Dept 11-23-22

Practice Point: Here the perpetrator, Mack, spontaneously pulled out a knife after he was knocked down in a fist fight with the victim. There was no evidence defendant was aware of Mack’s spontaneous use of a knife, and, therefore, there was no evidence defendant shared Mack’s intent to stab the victim.

 

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EVEN IF THE CONTRACT BETWEEN THE INSURER AND CLAIMANT INSURANCE BROKER INCLUDED ALL THE STATUTORY FACTORS IN LABOR LAW 511, THE BROKER WILL BE CONSIDERED AN EMPLOYEE IF THE SERVICES ACTUALLY PROVIDED BY THE BROKER ARE NOT CONSISTENT WITH THE CONTRACT PROVISIONS (THIRD DEPT).

The Third Department determined the insurance company, Paul Revere, did not demonstrate that claimant insurance broker was not an employee. Claimant was entitled to unemployment insurance benefits:

Labor Law § 511 (21) provides that “[t]he term ’employment’ shall not include the services of a licensed insurance agent or broker if,” among other things, “the services performed by the agent or broker are performed pursuant to a written contract” … that, in turn, contains seven statutorily enumerated provisions … . Here, the Board concluded that two of the seven statutory requirements were absent from the written agreement entered into between claimant and Paul Revere — specifically, provisions demonstrating that claimant was “permitted to work any hours he . . . chooses” … and was “permitted to work out of his . . . own office or home or the office of the person for whom services are performed” … . Paul Revere disagrees, contending that article XI (A) of the written contract satisfies such requirements by providing that “Paul Revere shall not exercise nor have the right to exercise direction or control over [claimant’s] time, when or how [claimant] may work, or over the activities of [claimant].”

… [W]e agree with the Board that the conclusory and sweeping language employed in article XI (A) of the contract does not satisfy the requirements of Labor Law § 511 (21) (d) (iii) and (iv). … [E]ven assuming, without deciding, that the written agreement between Paul Revere and claimant did … fulfill all of the statutory requirements, we agree with the Board’s further conclusion that the parties’ conduct was inconsistent with the provisions of Labor Law § 511 (21) and, therefore, the services performed by claimant do not fall within the statutory exclusion…. . …

… [T]he statute requires both that the contract at issue contain the seven enumerated provisions and “that the services performed by the insurance agent or broker actually be consistent with those provisions” … . Matter of Hoyt (Paul Revere Life Ins. Co.–Commissioner of Labor), 2022 NY Slip Op 06518, Third Dept 11-17-22

Practice Point: Even if the contract between the insurer and claimant insurance broker includes all the statutory provisions in Labor Law 511 (such that the broker would not be considered an employee for unemployment insurance purposes), if the services actually performed by the broker are not consistent with those contract provisions the broker may be deemed an employee eligible for benefits.

 

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CONTRARY TO SUPREME COURT’S RULING, THE REAL ESTATE PURCHASE AGREEMENT, BY ITS TERMS, DECLARED THE CONTRACT CANCELLED IF THE INSPECTION REVEALED PROBLEMS AND THE PARTIES DID NOT AGREE ON HOW TO ADDRESS THOSE PROBLEMS WITHIN TEN DAYS; THE INSPECTION IN FACT REVEALED PROBLEMS AND NO AGREEMENT ON RESOLUTION WAS MADE WITHIN THE ALOTTED TEN DAYS (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined that the real estate purchase agreement was canceled in accordance with its own terms:

… [P]laintiff’s transmission of the form contract and rider constituted an offer, and the sellers counteroffered by signing and returning to plaintiff only the form contract without the rider. Plaintiff then accepted the counteroffer by proceeding with the inspections, as “a counteroffer may be accepted by conduct” … . We also agree with the court that plaintiff’s counsel’s May 18, 2020 letter did not constitute attorney disapproval of the contract under the attorney approval contingency. This letter merely acknowledged receipt of the signed contract and inquired as to the rider and other documents; in no way did it signal disapproval.

… Plaintiff’s attorney, in his letter of June 17, 2020, notified the sellers’ attorney that the property had failed multiple inspections, and provided a copy of the relevant inspection report. This conduct, in accordance with the language set forth in the inspection contingency, rendered the contract “cancelled, null and void” unless plaintiff chose to defer cancellation for 10 days. Given that the letter from plaintiff’s attorney also set forth potential ways in which the inspection issues could be resolved, we are satisfied that the 10-day option was exercised. That said, the parties did not reach a written agreement on these issues within 10 days as was expressly required pursuant to the inspection contingency … . Savignano v Play, 2022 NY Slip Op 06307, Third Dept 11-10-22

Practice Point: In reversing Supreme Court, the Third Department simply read the real estate purchase agreement and enforced the term deeming the contract cancelled if the parties did not agree on the resolution of problems revealed by inspection within ten days. No such agreement was reached.

 

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