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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ALTHOUGH FAMILY COURT THREATENED TO FIND RESPONDENT IN DEFAULT WHEN HE DID NOT PROVIDE PROOF HE FAILED TO APPEAR BECAUSE HE WAS HOSPITALIZED, FAMILY COURT DID NOT ULTIMATELY GIVE RESPONDENT A “DEFAULT WARNING;” RESPONDENT AND HIS COUNSEL WERE PRESENT AT THE FACT-FINDING BUT WERE PRECLUDED BY THE COURT FROM PARTICIPATING; RESPONDENT HAS A RIGHT TO BE HEARD ON THE ABANDONMENT ISSUE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent father in this termination of parental rights proceeding was not in default and that he was entitled to present a defense. To explain his failure to appear, respondent said he was hospitalized but he did not provide any proof of hospitalization when the court requested it. The court then found respondent to be in default and precluded respondent and his counsel from participating in the termination hearing:

Petitioner and the attorney for the child argue that the appeal must be dismissed because the challenged order was entered upon respondent’s default. We disagree. In its written decision, Family Court stated that it had advised respondent’s counsel at the December 18, 2019 appearance that, if the requested medical documentation was not timely provided, it “would find [respondent] in default” and “the trial would be an [i]nquest.” Our review of the record, however, confirms that no such warning was given. Instead, the court cautioned that if respondent failed to comply, it would “proceed with the proceeding with regard to the termination of his parental rights.” This is not a default warning but notice that the hearing would go forward on January 15, 2020. However frustrating respondent’s noncompliance with the court’s reasonable directive to provide documentation of his hospitalization may have been, the key point here is that respondent and his counsel were in attendance at the fact-finding hearing. We fully appreciate that trial courts are vested with broad authority to maintain the integrity of their calendars. Under the circumstances presented, however, we conclude that Family Court abused its discretion in holding respondent to be in default and precluding any participation at the hearing … . Matter of Makayla NN. (Charles NN.), 2022 NY Slip Op 02165, Third Dept 3-31-22

​Practice Point: Here Family Court never gave a “default warning” to respondent father when he failed to provide proof he did not appear because he was hospitalized. Father, who was present at the fact-finding, should not have been found to be in default and precluded from participating in the termination of parental rights proceeding.

 

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THE USE OF ELECTRONIC LOGGING DEVICES (ELD’S) TO MONITOR THE HOURS AND PLACES OF OPERATION OF COMMERCIAL MOTOR VEHICLES (CMV’S) AND THE INSPECTION OF ELD’S BY LAW ENFORCEMENT PERSONNEL DURING ROADSIDE SAFETY INSPECTIONS CONSTITUTE VALID ADMINSITRATIVE SEARCHES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan (too comprehensive to fairly summarize here), determined the use of electronic logging devices (ELD’s) to monitor the hours and places of operation of commercial motor vehicles (CMV’s), such that the data collected by the ELD’s can be inspected by law enforcement personnel, does not constitute unreasonable search and seizure:

ELDs integrate with a vehicle’s engine and use GPS technology to automatically record the date, time and approximate geographic location of CMVs, as well as the number of engine hours and vehicle mileage (see 49 CFR 395.26 [b]). Drivers are required to manually input identifying information and any changes in their duty status, the categories of which include, among others, on-duty, off-duty and authorized personal use (see 49 CFR 395.24 [b]; 395.26 [b]; 395.28). Upon request, information recorded by ELDs must be made available to law enforcement personnel during roadside safety inspections … .* * *

 … “[O]ne would be hard-pressed to find an industry more pervasively regulated than the trucking industry.” … [W]e … find that commercial trucking is a pervasively regulated industry pursuant to which an administrative search may be justified.

… [T]he regulatory scheme at issue here provides adequate assurances that the inspection of ELDs will be reasonable. …

The ELD rule likewise provides the requisite “meaningful limitation” on the discretion of officials performing the inspection so as to ensure “that the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” … . Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 2022 NY Slip Op 02166, Third Dept 3-31-22

Practice Point: Administrative searches are deemed constitutional in “heavily regulated industries.” Commercial trucking is a heavily regulated industry. The use of electronic logging devices (ELD’s) to monitor the hours and places of operation of commercial motor vehicles (CMV’s) and the inspection of ELD’s by law enforcement personnel during roadside safety inspections constitute valid administrative searches.

 

PLAINTIFF AGREED TO PROVIDE POURED, NOT PUMPED, CONCRETE AND SPECIFICALLY EXCLUDED THE INSTALLATION OF TACTILE STRIPS FROM THE SUBCONTRACT; DEFENDANT SUBSEQUENTLY REQUESTED THAT PLAINTIFF PROVIDE PUMPED CONCRETE AND INSTALL TACTILE STRIPS; THESE CHANGES WERE MATERIAL BUT NOT “CARDINAL” SUCH THAT PLAINTIFF’S PERFORMANCE WAS EXCUSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant’s (Banton’s) requested changes to the contract were not a “cardinal changes” such that Banton breached the contract. The plaintiff, pursuant the subcontract, provided concrete for the construction project. The original subcontract indicated plaintiff would “pour” not “pump” the concrete and would not install “tactile strips.” Subsequently, Banton requested that the concrete be pumped and that tactile strips be installed. The parties then agreed to proceed with those changes:

Supreme Court found that Banton’s request to modify the concrete delivery method from pouring to pumping, in light of the express subcontract exclusion, was a material change to the scope of plaintiff’s work under the agreement. Although we agree with the court that this was a material change, we do not find it to be a cardinal change such that Banton can be found to have breached the contract … . A cardinal change is one that affects “‘the essential identity or main purpose of the contract,’ such that it ‘constitutes a new undertaking'” … . The main purpose of this subcontract was to complete the concrete work for the project, and we do not find that the changes in the work requested by Banton fundamentally changed this purpose so as to constitute a cardinal change that would relieve plaintiff of its obligation to perform under the subcontract … . This conclusion is further supported by the fact that plaintiff was ready, willing and able to implement these changes and continue to perform under the subcontract, but only if its price was met. McCarthy Concrete, Inc. v Banton Constr. Co., 2022 NY Slip Op 02168, Third Dept 3-31-22

Practice Point: Here it was determined that the changes to the subcontract requested by the defendant were “material” but they were not “cardinal” such that plaintiff’s performance was excused. Plaintiff had specifically excluded “pumped,” as opposed to “poured,” concrete and the installation of tactile strips from the subcontract. Defendant subsequently requested “pumped” concrete and the installation of tactile strips. Essentially the parties agreed to proceed with the changes. Supreme Court should not have held plaintiff was not obligated to perform.

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PLAINTIFF COUNTY, ACTING ON BEHALF OF THE NURSING HOME WHERE DECEDENT WAS CARED FOR, WAS ENTITLED TO DISCLOSURE OF DECEDENT’S TAX RETURNS; THE RETURNS ARE RELEVANT TO WHETHER DECEDENT’S SON BREACHED THE “RESPONSIBLE PARTY AGREEMENT” WHICH REQUIRED HIM TO USE THE DECEDENT’S INCOME TO PAY THE NURSING HOME (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, plaintiff county (on behalf of the nursing home where decedent was cared for) was entitled to disclosure of decedent’s tax returns in this action against decedent’s son. The action alleged the son breached the “responsible party agreement” in which the son agreed to pay the decedent’s nursing home costs from the decedent’s income and resources:

Unlike a typical action where the assets of a defendant are irrelevant unless and until a judgment is obtained, here … the existence and value of decedent’s assets are critical to the issue of whether Jeffrey Garry [decedent’s son] breached the agreement by failing to use such assets to pay for decedent’s care … . …

Although “tax returns are generally not discoverable unless the party seeking them shows that they are relevant to issues in the case, indispensable to the claim and unavailable from other sources” … , we are satisfied that plaintiff made the requisite showing here, particularly given defendants’ reluctance to produce responsive documents or interrogatory responses that may have otherwise provided information contained in decedent’s tax returns … . County of Warren v Swan, 2022 NY Slip Op 02169, Third Dept 3-31-22

Practice Point: Although tax returns are generally not discoverable until a judgment is obtained, here the decedent’s returns were deemed relevant to whether decedent’s son breached the “responsible party agreement” with the nursing home which cared for decedent. The agreement required decedent’s son to pay the nursing home from decedent’s income and resources.

 

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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DID NOT ADEQUATELY EXPLAIN THE STATUTORY FACTORS SUPPORTING ITS DENIAL OF PETITIONER’S REQUEST FOR A CERTIFICATE OF GOOD STANDING, WHICH WOULD ALLOW THE FORMER INMATE TO WORK AS A SCHOOL BUS DRIVER; THEREFORE THE DENIAL WAS ARBITRARY; MATTER REMITTED FOR FURTHER PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Department of Corrections and Community Supervision’s (DOCCS’s) denial of petitioner’s application for a certificate of good conduct (CGC) was not supported by the agency’s cursory rulings, rendering the denial arbitrary and requiring remittal for further proceedings. Petitioner, a former inmate with a sexual-offense conviction, sought the certificate of good standing in order to work as a school bus driver:

… [T]he challenged determination is a form letter with blanks to be filled in, and the Assistant Commissioner made no effort to explain his reasoning beyond checking a box next to a sentence stating that petitioner’s application was being denied because “[t]he relief to be granted by the [CGC] is inconsistent with public interest.” There is no question that such a “cursory letter decision,” which mentions only one of the statutory factors set forth in Correction Law § 703-b and offers no discussion of the “grounds for the denial[,] precludes meaningful review of the rationality of the decision” … .

… Correction Law article 23 requires more than a naked reliance on the crime of conviction, and the Assistant Commissioner’s affidavit … reflects that DOCCS “failed to comply with the statute and acted in an arbitrary manner” … . Although the record contains other information regarding the circumstances of petitioner’s conviction and his subsequent history that might render the denial of his application rational, a “court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis” … . Matter of Streety v Annucci, 2022 NY Slip Op 02170, Third Dept 3-31-22

​Practice Point: If an administrative agency issues a ruling which does adequately explain the statutory factors upon which the ruling is based, making a review of the bases of the ruling impossible, the ruling may be characterized as “arbitrary” and annulled.

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ALTHOUGH THE VAPING ASSOCIATION PREVAILED IN ITS ACTION FOR A PRELIMINARY INJUNCTION STAYING THE ENFORCEMENT OF THE DEPARTMENT OF HEALTH’S REGULATIONS BANNING FLAVORED VAPING LIQUIDS, THE DEPARTMENT’S ACTION WAS “SUBSTANTIALLY JUSTIFIED;” THEREFORE THE VAPING ASSOCIATION WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent Public Health and Planning Council (within the NYS Department of Health) (the council) should not have been ordered to pay attorney’s fees to petitioner Vapor Technology Association (the vaping association) pursuant to the State Equal Access to Justice Act. The respondent council had adopted emergency regulations prohibiting flavored vaping liquids targeting young people. The petitioner vaping association brought a combined Article 78 and declaratory judgment action challenging the emergency regulations as exceeding the council’s regulatory authority. The Third Department granted the vaping association’s request for a temporary restraining order and Supreme Court granted a preliminary injunction. The matter was rendered moot when the legislature banned the sale of the flavored electronic cigarette products. Because the vaping association had prevailed prior to the legislature’s prohibition, it sought and was awarded attorney’s fees:

CPLR 8601 (a) “mandates an award of fees and other expenses to a prevailing party in any civil action brought against the state, unless the position of the state was determined to be substantially justified or that special circumstances render an award unjust” … . * * *

Petitioners capably disputed respondents’ arguments and obtained a temporary restraining order and a preliminary injunction barring enforcement of the emergency regulations, but a grant of temporary injunctive relief is not “an adjudication on the merits,” and we need not decide who would have prevailed had this matter proceeded to a final judgment … .. Upon our review, we are satisfied that respondents articulated a reasonable factual and legal basis for their arguments that the Council and the Commissioner acted within their rule-making authority by adopting the emergency regulations … . Thus, Supreme Court abused its discretion in finding that those arguments were not “substantially justified” within the meaning of CPLR 8601 (a), and petitioners were not entitled to an award of counsel fees and expenses as a result … .Matter of Vapor Tech. Assn. v Cuomo, 2022 NY Slip Op 02171, Third Dept 3-31-22

Practice Point: Even though a party which prevails against a state agency is generally entitled to attorney’s fees pursuant to the State Equal Access to Justice Act, if the agency’s actions are deemed “substantially justified” attorney’s fees will not be awarded. Here the Department of Health’s adoption of emergency regulations banning the sale of flavored vaping liquids (targeting young people as a market) was deemed “substantially justified” by the appellate court. The award of attorney’s fees by Supreme Court was reversed.

 

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THE WIFE’S REQUEST FOR MAINTENANCE WAS REJECTED WITHOUT EXPLANATION AND THE HUSBAND’S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE WHOLLY ADOPTED BY SUPREME COURT; THE THIRD DEPARTMENT AWARDED MAINTENANCE ON APPEAL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the wife was entitled to maintenance in this divorce proceeding. The parties had been married for 44 years. The wife’s income was around $31,000 and the husband’s income was around $117,000. Both were retired. The Third Department noted that Supreme Court did not give any indication of its rationale for rejecting the wife’s application and adopted the husband’s findings of fact and conclusions of law:

“The amount and duration of a maintenance award are addressed to the sound discretion of the trial court, and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered” … .. “The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding or declining to award maintenance” … .

Supreme Court wholly adopted verbatim the husband’s proposed findings of fact and conclusions of law, without articulating the factors it considered or providing a reasoned analysis for its rulings on the proposed findings of fact and conclusions of law. “[F]indings of fact submitted pursuant to CPLR 4213 (a) cannot constitute the decision of the court [as] mandated by Domestic Relations Law § 236 (B) (5) (g)” … . Although Supreme Court failed to set forth its rationale for rejecting the wife’s request for maintenance, “because our authority is as broad as that of the Supreme Court, we need not remit this issue” … . Louie v Louie, 2022 NY Slip Op 02172, Third Dept 3-31-22

Practice Point: Here in this divorce proceeding the judge did not give any indication of the rationale for rejecting the wife’s request for maintenance and wholly adopted the husband’s findings of fact and conclusions of law. Findings of fact cannot constitute a court’s decision. Rather than remitting the matter, the Third Department awarded maintenance.

 

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PETITIONER STARTED PROCEEDINGS CONCERNING THE EXECUTOR’S HANDLING OF DECEDENT’S ASSETS IN SURROGATE’S COURT; AFTER RELIEF WAS DENIED WITHOUT PREJUDICE PETITIONER STARTED SIMILAR PROCEEDINGS IN SUPREME COURT, A COURT OF CONCURRENT JURISDICTION; THE EXECUTOR’S MOTION TO TRANSFER THAT PROCEEDING TO SURROGATE’S COURT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined that Surrogate’s Court, not Supreme Court, was the proper forum for this proceeding concerning respondent-executor’s handling of decedent’s assets. Both respondent and petitioner are decedent’s children. Petitioner had commenced proceedings in Surrogate’s Court, and, after the requested relief was denied without prejudice, petitioner commenced a similar proceeding in Supreme Court:

“Supreme Court and . . . Surrogate’s Court have concurrent jurisdiction in matters involving decedents’ estates” … . Generally, where courts share concurrent jurisdiction, “it should continue to be exercised by that one whose process was first issued. Moreover, wherever possible, all litigation involving the property and funds of a decedent’s estate should be disposed of in . . . Surrogate’s Court” … . Supreme Court’s denial of a motion to transfer to Surrogate’s Court will not be disturbed absent an abuse of discretion … . * * *

Petitioner challenges the propriety of transactions allegedly made in breach of respondent’s fiduciary duty to decedent while decedent was alive, involving assets that would have become part of decedent’s estate. This matter falls squarely within the purview of Surrogate’s Court … . Since “all the relief requested may be obtained in . . . Surrogate’s Court and . . . Surrogate’s Court has already acted,” we find that Supreme Court should have granted respondent’s motion seeking to transfer the proceeding … . Matter of McNeil v McNeil, 2022 NY Slip Op 02173, Third Dept 3-31-22

Practice Point: Surrogate’s Court and Supreme Court have concurrent jurisdiction. Here a matter concerning the executor’s handling of decedent’s assets was commenced in Surrogate’s Court, and after relief was denied there, a second similar matter was commenced in Supreme Court. The executor’s motion to transfer the second proceeding to Surrogate’s Court should have been granted.

 

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THE BIOLOGICAL MOTHER AND THE ADOPTIVE MOTHER ENTERED A POSTADOPTION CONTACT AGREEMENT WHICH ALLOWED TWO SUPERVISED VISITS WITH THE BIOLOGICAL MOTHER PER YEAR; THE EVIDENCE OF THE CHILDREN’S BEHAVIOR AFTER VISITING WITH THE BIOLOGICAL MOTHER SUPPORTED FAMILY COURT’S CONCLUSION IT WAS IN THE BEST INTERESTS OF THE CHILDREN TO TERMINATE VISITATION WITH THE BIOLOGICAL MOTHER; THE DISSENT ARGUED THE EVIDENCE OF THE DAUGHTER’S, IN CONTRAST TO THE SON’S, POST-VISIT BEHAVIOR DID NOT SUPPORT TERMINATION OF VISITATION WITH THE DAUGHTER (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined Family Court properly terminated the biological mother’s visitation with her children who had been adopted. The biological mother and the adoptive mother had entered a postadoption contact agreement which allowed the biological mother two supervised visits per year with her son and daughter. The evidence at the fact-finding hearing demonstrated that the son’s behavior changed drastically after visits. His behavior was characterized as “out of control.” There was evidence the daughter began banging her head and had nightmares after a visit. The dissent argued the evidence supported termination of visits with the son, but did not support the termination of visits with the daughter:

The adoptive mother testified that after visiting the biological mother in December 2017, the son destroyed rooms in the house and was completely out of control for close to a month. After the July 2018 visit with the biological mother, the son “climb[ed] the walls in [his] classroom,” hit his friend, hurt his sister and had difficulties regulating his behavior for several months. * * *

With respect to the dissent’s reference to the policy concerns underlying postadoption contact agreements, we note that we wholeheartedly embrace and promote the policies and goals of these types of agreements and encourage open adoptions. However, it is not our intention to address the underlying policies of postadoption contact agreements, but, instead, to focus solely upon the principle governing and guiding the initiation and continuation of open contact between the children and the biological parent — the best interests of the children. Here, it is uncontroverted that the daughter displayed a persistent pattern of bizarre and harmful behavior — head banging and disrupted sleep due to nightmares — commensurate with visits with her biological mother. These behaviors continued for 1½ years. Although the daughter did not display the behaviors at the time of the visits, a time when the adoptive parents were present and the daughter’s attention was directed toward other activities, the behaviors were manifested subsequent to each visit. … [W]e cannot agree that enforcing visitation with respect to one sibling but not the other serves the best interests of either. Matter of Jennifer JJ. v Jessica JJ., 2022 NY Slip Op 02043, Third Dept 3-24-22

Practice Point: The postadoption contact agreement allowing the biological mother to visit her children after adoption was properly terminated by the court because the evidence of the children’s post-visit behavior supported the conclusion continued visitation was not in the best interests of the children.

 

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THE FACT THAT THE ATTORNEY FOR THE CHILD (AFC) IN THIS CUSTODY MATTER HAD, AS A JUDGE, PRESIDED OVER A DIFFERENT CUSTODY MATTER INVOLVING MOTHER, BUT INVOLVING DIFFERENT CHIDREN AND A DIFFERENT FATHER, DID NOT REQUIRE AUTOMATIC DISQUALIFACTION OF THE AFC PURSUANT TO JUDICIARY LAW 17 (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the attorney for the child (AFC) in the instant custody matter, who, as a judge, had presided over another custody case involving mother and different children, was not subject to automatic disqualification:

Various factual circumstances exist where disqualification of an attorney under Judiciary Law § 17 has been found. * * *

… [T]he custody case noted by the mother neither involved the subject children nor the subject children’s father] Rather, it was an entirely separate proceeding involving different children and a different father. Furthermore, the mother does not allege any factual ties between these underlying proceedings and the prior custody case … . Indeed, the only common tie between them is that the mother was a litigant. … [O]nly the mother, and not her present custody claim over the subject children, had been before the AFC during his tenure as a judge.

… [T]he mother’s fitness as the custodial parent presumably was an issue presented in her prior custody case. It is also an issue present here. Equating a discrete issue with a “matter” provided in Judiciary Law § 17, however, impermissibly stretches the meaning of “matter” such that it does not comport with “action, claim, . . . motion or proceeding” — the other terms in Judiciary Law § 17 … . … [I]n view of the jurisdiction of Family Court and the particular cases such court hears, a party’s fitness as a custodial parent frequently arises as an issue whether directly or indirectly. By giving an expansive view to “matter,” the AFC, a former Family Court judge who had presided over countless proceedings in the past, would be disqualified from representing any party in any future case where another party in such case was previously before the AFC in one of those past proceedings — a result that would occur without regard to the nature of either the past proceeding or future case. Matter of Corey O. v Angela P., 2022 NY Slip Op 02044, Third Dept 3-24-22

Practice Point: The fact that the attorney for the child (AFC) in this custody case presided, as a judge, over another custody case involving mother, but involving different children and a different father, did not require automatic disqualification of the AFC pursuant to Judiciary Law section 17.

 

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