FULL SUMMARIES OF SELECTED DECISIONS, MOSTLY REVERSALS, RELEASED 12-2-26 - 12-6-24 BY THE 1ST, 2ND & 3RD DEPARTMENTS
Click on the legal categories to go to all the decision-summaries in those categories on the New York Appellate Digest website, most recent first. Click on the citations to go to the full decisions on the official New York Courts website.
DEFENDANT’S 140-YEARS-TO-LIFE SENTENCE IN THIS PREDATORY-SEXUAL-ASSAULT-OF-A-CHILD PROSECUTION DEEMED UNDULY HARSH AND SEVERE; THE PEOPLE HAD TWICE OFFERED A 15-20-YEAR SENTENCE; SENTENCE REDUCED TO 20-TO-LIFE (THIRD DEPT).
The Third Department held that defendant’s 140 years-t0-life sentence in this predatory-sexual-assault-of-a-child prosecution was unduly harsh and severe. The sentence was reduced to 20 years-to-life:
We turn to defendant’s aggregate sentence of 140 years to life in prison. As a threshold matter, our determination that the sentences imposed on counts 2 and 15 must run concurrently reduces defendant’s aggregate prison term to 118 years to life. The bulk of that remaining aggregate sentence is still consumed by the consecutive 22-years-to-life prison terms imposed for defendant’s convictions of predatory sexual assault against a child under counts 2 and 15, 4, 5, 6 and 7. Although defendant’s crimes are heinous, the sentences on each of those counts are near the top end of the permissible range notwithstanding defendant’s lack of any prior criminal history (see Penal Law § 70.80 [2] …). We also note that the People advocated for the 140-years-to-life aggregate sentence even though that sentence exceeded by over a century their plea offer of 12 to 15 years in satisfaction of all 15 counts of the indictment — an offer they extended twice.
Accordingly, we find that defendant’s aggregate prison sentence is unduly harsh and severe (see CPL 470.15 [6] [b] …). We modify the sentences, in the interest of justice, by reducing the term of imprisonment imposed on defendant’s convictions on the counts of predatory sexual assault against a child (counts 2, 4, 5, 6, 7 and 15) to 20 years to life, and we direct those sentences to run concurrently with each other. We further modify the sentences imposed on counts 8, 9, 10, 11 and 13 to run concurrently with each other and with the sentences imposed on counts 2 and 15, 4, 5, 6 and 7, resulting in an aggregate prison term of 20 years to life, to be followed by 10 years of postrelease supervision … .?People v Mayette, 2024 NY Slip Op 06083, Third Dept 12-5-24
Practice Point: Here the court noted that the People had offered a 15-20-year sentence as part of a plea deal and then advocated for the 140-years-to-life sentence upon conviction, which was imposed. The Third Department reduced the sentence to 20-to-life.
December 5, 2024
PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).
The Third Department, reversing Supreme Court, over a two-judge dissent, determined the planning board did not have the power to issue a special use permit and site plan approval for a commercial park:
… [T]he jurisdiction of a zoning board of appeals is appellate in nature (see Town Law § 267-a [4]). Nevertheless, a town possesses the authority to enact a local law or ordinance vesting its zoning board of appeals with original jurisdiction (see Town Law § 267-a [4]), including, for example, to address questions of zoning code interpretation … . Here, the Code of the Town of Thompson expressly provides that the ZBA may pass on matters of interpretation as to whether a proposed use is permitted under the zoning code either “[o]n appeal from a[ ] . . . determination made by an administrative official, or on request by an official, board or agency of the Town” (Code of the Town of Thompson § 250-46 [A] …), the latter option being what was requested by petitioners. *
… [I]t is evident that a genuine question exists as to whether the project will fall within a permissible or prohibited use, and the Planning Board improperly resolved this issue on its own. “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … . As such, the issue should have been resolved either by the local code enforcement officer, or by the ZBA upon referral from the Planning Board (see Code of the Town of Thompson §§ 250-41 [C], 250-46 [A] … .?Matter of Smith v Town of Thompson Planning Bd., 2024 NY Slip Op 06085, Third Dept 12-5-24
Practice Point: Check the Town Law and the local Town Code to determine whether a Planning Board has the power to act. Here the Planning Board did not have the power to interpret a local zoning law and determine, on its own, that the proposed development is a permissible use of the land.
December 5, 2024
THE ZONING REGULATION WHICH REQUIRES PAYMENT TO AN “ARTS FUND” OF $100 PER SQUARE FOOT FOR CONVERSION OF “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO FULLY RESIDENTIAL USE IS AN UNCONSTITUTIONAL TAKING (FIRST DEPT).
The First Department, reversing Supreme Court, found unconstitutional a NYC Zoning Regulation (ZR) which required artists who wish to convert their “joint living-work quarters for artists (JLWQA)” to residential use to pay $100 per square foot to an “Arts Fund.” The fund did not have a sufficient connection with the government’s land-use interest:
The ZR amendment passed by the City, in establishing the Special SoHo-NoHo Mixed Use District (SNX District), provides current JLWQA unit owners a pathway to convert uses but also requires them, if and when they seek conversion, to contribute “$100.00 per square foot of floor area to be converted” to the Arts Fund, with annual increases … . “[T]he payment of such non-refundable contribution shall be a precondition to filing for or issuing of any building permit allowing the conversion [of] a joint living-work quarters for artists to a residence” … .
The Arts Fund fee constitutes a permit condition for which the “two-part test modeled on the unconstitutional conditions doctrine” applies … . Thus, the permit condition “must have an ‘essential nexus’ to the government’s land-use interest,” which “ensures that the government is acting to further its stated purpose” … , and the condition “must have ‘rough proportionality’ to the development’s impact on the land-use interest” … .
In applying the two-part test, we find that petitioners are entitled to a declaration that the Arts Fund fee requirement constitutes a taking without just compensation (US Const Amend V; NY Const art I, § 7[a]).?Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2024 NY Slip Op 06118, First Dept 12-5-24
Practice Point: Here a zoning regulation which required payment of a fee of $100 per square foot to an “Arts Fund” as a precondition for a building permit was deemed an unconstitutional taking.
December 5, 2024
THERE WAS A QUESTION OF FACT WHETHER THE TIME-OF-THE-ESSENCE CLOSING DATE SET IN SELLER’S LETTER PROVIDED SUFFICIENT TIME FOR BUYER TO CLOSE; THEREFORE SELLER WAS NOT ENTITLED TO SUMMARY JUDGMENT REQUIRING SPECIFIC PERFORMANCE; CRITERIA EXPLAINED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined there was a question of fact whether the time-of-the-essence closing date set in a letter from seller’s counsel allowed sufficient time for the buyer to close. Therefore the seller was not entitled to summary judgment requiring specific performance based on the buyer’s failure to appear:
“Where there is an indefinite adjournment of the closing date specified in the contract of sale, some affirmative act has to be taken by one party before it can claim the other party is in default; that is, one party has to fix a time by which the other must perform, and it must inform the other that if it does not perform by that date, it will be considered in default” … . “The notice setting a new date for the closing must (1) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he [or she] does not perform by the designated date, he [or she] will be considered in default” … . “It does not matter that the date is unilaterally set, and what constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case” … . “Included within a court’s determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance” … . “‘[T]he question of what constitutes a reasonable time is usually a question of fact'” … .?Fink v 218 Hamilton, LLC, 2024 NY Slip Op 06026, Second Dept 12-4-24
Practice Point: Consult this decision for an explanation of the law surrounding setting an enforceable time-of-the-essence date for the closing.
December 4, 2024
OFFICIALS OF A NATIVE AMERICAN NATION CAN BE SUED IN NEW YORK STATE COURTS FOR OFF-RESERVATION ACTIONS (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Connolly, over a partial concurrence and partial dissent, determined the trustees (officials) of a sovereign Native American nation may be sued in New York State courts for their off-reservation actions. Here the defendants constructed billboards within a highway right of way which traversed land owned by the Nation. The opinion addresses an issue of first impression and is too complex and detailed to fairly summarize here:
In March and April 2019, the defendants allegedly had trees cut and removed from within the highway right-of-way, without obtaining a work permit from the DOT, and the DOT allegedly issued two stop work orders to the defendants’ alleged contractors. Thereafter, the defendants allegedly began trenching and placed large equipment, a pile of stones, and support piles within the highway right-of-way, without a work permit from the DOT. The DOT allegedly issued another stop work order and a cease and desist letter to the defendants. The plaintiffs alleged that the defendants ignored the stop work orders and the cease and desist letter. *
… [N]otwithstanding sovereign immunity, Native Americans “going beyond reservation boundaries are subject to any generally applicable state law,” “[u]nless federal law provides differently” … . Here, the plaintiffs alleged that the structures are being constructed upon the subject property, over which the State has a permanent easement. The plaintiffs further alleged that the subject property is not aboriginal or sovereign land of the Nation, the Nation owns the subject property in fee simple, and the subject property is not part of the Reservation nor held in trust by the federal government. Thus, according to the plaintiffs, the Trustee defendants have engaged in conduct “beyond reservation boundaries,” and they are subject to generally applicable state laws … .?Commissioner of the N.Y. State Dept. of Transp. v Polite, 2024 NY Slip Op 06023, Second Dept 12-4-24
Practice Point: Officials (trustees) of a Native American Nation can be sued in New York State courts for off-reservation actions. Here the trustees constructed billboards on a highway right of way which traversed land owned by the Nation.
December 4, 2024
THE ORDER OF FACT-FINDING IN THIS JUVENILE DELINQUENCY PROCEEDING WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STREET STOP WAS NOT SUPPORTED BY REASONABLE SUSPICION; AND THE SHOWUP IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE (SECOND DEPT).
The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the order of fact-finding was against the weight of the evidence, the appellant was stopped by the police in the absence of reasonable suspicion, and the victim’s identification of the appellant should have been suppressed. The victim was struck from behind and saw only the backs of the assailants’ heads. The identification was made from a police car at a distance of 240 feet, and the show-up identification procedure was unduly suggestive:
… [W]hile the complainant initially claimed that he had a momentary opportunity to see his alleged assailants’ faces after he stood up, he later acknowledged that he merely observed “the backs of their heads” as they fled. Moreover, the credibility of the complainant’s testimony was undermined by his claim to have been able to identify the appellant during a showup identification procedure from a significant distance in the backseat of a police car using only one eye. *
… [T]he testimony presented at the suppression hearing established that the police, using two police cars, stopped the appellant and two companions because they fit the general description given by the complainant of “black male[ ]” “youths” riding bicycles. The presentment agency did not present any evidence at the suppression hearing that the appellant and his companions were engaged in any suspicious behavior at the time of the police stop. Moreover, at the time of the police stop, the appellant was with only two companions, which conflicted with the complainant’s description of “five youths.” Under these circumstances, the evidence presented at the suppression hearing was insufficient to establish that the police had reasonable suspicion to stop the appellant … . *
Wayne Bowman, a police officer who accompanied the complainant during the showup identification procedure, testified at the suppression hearing that he assured the complainant that “[w]e’re far enough back they’re not going to be able to see you” and acknowledged that he and the complainant were positioned about the distance of “[a] football field” away from the appellant and his companions during the showup identification procedure. Moreover, the complainant acknowledged at the suppression hearing that prior to the showup identification procedure, Bowman told him that the police “had stopped people that fit the description.” Under these circumstances, the Family Court improperly determined that the showup identification procedure was reasonable and not unduly suggestive … .?Matter of Ahmand T., 2024 NY Slip Op 06051, Second Dept 12-4-24
Practice Point: The identification-evidence in this juvenile delinquency proceeding was too weak to support the order of disposition.
Practice Point: The street stop was not supported by reasonable suspicion.
Practice Point: The showup identification procedure was unduly suggestive.
December 4, 2024
ALTHOUGH THE PARTIES WERE DIVORCED IN COLORADO, THEY AND THEIR CHILDREN RESIDE IN NEW YORK; THE SUPPORT MAGISTRATE SHOULD NOT HAVE APPLIED COLORADO LAW IN DETERMINING FATHER’S SUPPORT OBLIGATION (SECOND DEPT).
The Second Department, reversing Family Court, determined the support magistrate should not have applied Colorado law. Although the parties were divorced in Colorado, the parties and the children all reside in New York:
“The Uniform Interstate Family Support Act . . . , ‘adopted in New York as article 5-B of the Family Court Act, grants continuing, exclusive jurisdiction over a child support order to the state that issued the order'” … . “As relevant herein, the issuing state loses such jurisdiction where none of the parties or children continue to reside in that state” … . Here, it is undisputed that the parties and their children reside in New York and that the mother registered the Colorado support order in this state. Thus, the Family Court, Westchester County, had jurisdiction to adjudicate the proceeding … .
Further, Family Court Act § 580-613(b) provides that, in a modification proceeding brought pursuant to section 580-613(a), the court “shall apply . . . the procedural and substantive law of this state” … . Here, the Support Magistrate improperly applied Colorado law in calculating the father’s modified support obligation … . Accordingly, the Family Court should have granted the mother’s objections.?Matter of O’Connor v Shaw, 2024 NY Slip Op 06046, Second Dept 12-4-24
Practice Point: Here the parties were divorced in Colorado but they and their children reside in New York. New York has jurisdiction over the support proceedings. The Support Magistrate should not have applied Colorado law to the support calculation.
December 4, 2024
THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AND THE MOTION FOR LEAVE TO RENEW SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION AGAINST THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (NYCHHC); CRITERIA EXPLAINED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim against the New York City Health and Hospitals Corporation (NYCHHC) for medical malpractice, as well as the motion for leave to renew based upon recently disclosed medical records, should have been granted:
… [P]etitioner established a reasonable excuse for the delay, to wit, the serious medical condition of the infant, which required hospitalization of the infant after his birth, feeding through a feeding tube, and numerous medical appointments while the condition of the infant was being assessed … . Considering the overall circumstances, including the petitioner’s natural predisposition to be more concerned with the infant’s medical condition and the treatment those injuries required, rather than with commencing legal action during the prescribed time period, the delay in serving a late notice of claim should have been excused … . Further, in support of that branch of the petitioner’s motion which was for leave to renew the petition, the petitioner submitted her medical records and an expert’s affidavit, which established that NYCHHC had actual knowledge of the essential facts constituting the claim since the alleged malpractice was apparent from an independent review of the medical records … . The medical records were not submitted earlier because, although the petitioner sought her medical records in August 2022, she only received those records on December 22, 2022 … . Further, the medical records were voluminous.
Since the conduct at issue was fully documented in the medical records, the petitioner made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice.?Matter of Bergado v New York City Health & Hosps. Corp., 2024 NY Slip Op 06039, Second Dept 12-4-24
Practice Point: Here the mother of the injured infant proffered an adequate excuse for failing to timely file a notice of claim in this medical malpractice action against the NYC Health and Hospitals Corporation (NYCHHC) and demonstrated the NYCHHC had timely notice of the nature of the action and suffered no prejudice from the delay through the medical records.
Practice Point: The motion for leave to renew was properly based upon mother’s recent receipt of medicals records not previously provided.
December 4, 2024
THE JUDGE SHOULD NOT HAVE DENIED THE MOTION TO DISMISS THE ARTICLE 78 PETITION/COMPLAINT AND THEN CONSIDERED THE MERITS OF THE PETITION/COMPLAINT WITHOUT ALLOWING RESPONDENT TO INTERPOSE AN ANSWER; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION/COMPLAINT ON GROUNDS NOT ADDRESSED BY THE UNDERLYING ADMINSTRATIVE RULING (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the judge could not deny the motion to dismiss the Article 78 petition/complaint and then consider the merits and dismiss the petition/complaint before allowing the respondent to interpose an answer. In addition, the court did not have the authority to consider issues not addressed by the underlying administrative ruling. The action was brought by an owner of shares in a cooperative (petitioner) against the co-op board (respondent) which denied petitioner’s application to convert an office to a residential unit:
… Supreme Court erred by considering the merits of the petition/complaint and, in effect, denying the petition/complaint and dismissing the proceeding/action, after it denied the co-op’s motion, inter alia, pursuant to CPLR 3211(a) to dismiss the petition/complaint. In a CPLR article 78 proceeding, if a motion to dismiss the petition is denied, “the court shall permit the respondent to answer” … . Here, the court should not have decided the merits of the petition seeking relief under CPLR article 78, as the co-op had not yet filed an answer … , and it cannot be said, on this record, “that the facts are so fully presented in the parties’ papers that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … .
Moreover, under all the circumstances, including that issue had not been joined and that branch of the co-op’s motion which pursuant to CPLR 3211(a) to dismiss the petition/complaint was not converted into a motion for summary judgment, there was no basis for the Supreme Court, in effect, to dismiss the proceeding/action after concluding that the co-op was not entitled to dismissal of the petition/complaint pursuant CPLR 3211(a) … .
Further, it has “long been the rule that judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination” … . A reviewing court is “powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, when the Supreme Court, in effect, affirmed the board’s denial of the application, the court improperly “surmise[d] or [*3]speculate[d] as to how or why” the board reached its determination and improperly relied on grounds not mentioned in the denial letter … .?Matter of 195 N. Vil. Ave., LLC v 195 Apts., Inc., 2024 NY Slip Op 06037, Second Dept 12-4-24
Practice Point: Once a judge denies a motion to dismiss a petition/complaint, the merits of the petition/complaint should not be considered before the respondent interposes an answer.
Practice Point: A judge reviewing an administrative ruling cannot decide the merits on grounds not addressed by the administrative ruling.
December 4, 2024
CPLR 3216 IS A FORGIVING STATUTE WHICH ALLOWS BUT DOES NOT REQUIRE DISMISSAL OF THE COMPLAINT FOR FAILURE TO COMPLY WITH A 90-DAY NOTICE; HERE PLAINTIFFS PRESENTED AN ADEQUATE EXCUSE AND DEMONSTRATED THE ACTION HAS MERIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the complaint should not have been dismissed on “neglect to proceed” grounds after plaintiffs’ failure to comply with the 90-day notice:
“CPLR 3216 is an extremely forgiving statute which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates “a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action” … . “Thus, even when all of the statutory preconditions are met, including plaintiff’s failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse” and proof of a potentially meritorious cause of action … .
Here, the plaintiffs’ belief that the action remained stayed in the absence of some affirmative act by the Supreme Court, although erroneous, constituted a justifiable excuse under the circumstances for their failure to respond to the defendant’s 90-day notice. Notably, the 90-day notice was sent only three months after the stay had been lifted, and the record does not otherwise contain evidence of a pattern of persistent neglect or delay in prosecuting the action or an intent to abandon the action … . Furthermore, the plaintiffs established the existence of a potentially meritorious cause of action sounding in strict products liability … .?Holness v Gigglesworld Corp., 2024 NY Slip Op 06031, Second Dept 12-4-24
Practice Point: CPLR 3216 is a forgiving statute which allows but does not require the dismissal of a complaint for failure to comply with a 90-day notice. Here plaintiffs presented an adequate excuse and demonstrated a meritorious cause of action. The complaint should not have been dismissed.
December 4, 2024
PLAINTIFF DID NOT PROVE DEFENDANT OWNER OF DEFENDANT CORPORATION WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT BY SUBSTITUTE SERVICE; EVEN PROPER SUBSTITUTE SERVICE WOULD NOT BE SUFFICIENT TO ACQUIRE PERSONAL JURISDICTION OVER A CORPORATION (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the defendant owner of defendant corporation (Tatiana Batin) and the corporation (Godess … Spa …) were not properly served with the summons and complaint in this action alleging an employee of defendant corporation sexually abused plaintiff during a massage:
… [P]laintiff failed to demonstrate by a preponderance of the evidence that Batin was properly served with the summons and complaint pursuant to CPLR 308(2). The hearing evidence established that the address at which Batin was purportedly served pursuant to CPLR 308(2) was neither her actual dwelling place nor her usual place of abode as of the purported date of service … . Contrary to the Supreme Court’s determination, “‘[e]ven if a defendant eventually acquires actual notice of the lawsuit, actual notice alone will not sustain the service or subject a person to the court’s jurisdiction when there has not been compliance with prescribed conditions of service'” … .
… [P]laintiff failed to demonstrate by a preponderance of the evidence that Goddess was properly served pursuant to CPLR 311(a)(1), which required delivery of the summons and complaint to “an officer, director, managing or general agent, or . . . any other agent authorized . . . to receive service.” “Personal service on a corporation must be made to one of the persons authorized by the statute to accept service, and an attempt to serve such person by substitute service pursuant to CPLR 308(2) or (4) will be insufficient to acquire jurisdiction over the corporation” … . Here, even assuming, arguendo, that Batin had been properly served pursuant to CPLR 308(2), substituted service upon her pursuant to CPLR 308(2) would be insufficient to acquire personal jurisdiction over Goddess, as CPLR 311(a)(1) requires personal service directly upon a corporate representative … .?Flatow v Goddess Sanctuary & Spa Corp., 2024 NY Slip Op 06029, Second Dept 12-4-24
Practice Point: At the hearing plaintiff did not prove defendant owner of defendant corporation was properly served with the summons and complaint by substitute service.
Practice Point: Personal jurisdiction over a corporation cannot be acquired by substitute service.
December 4, 2024
THE COURT SHOULD NOT HAVE DELEGATED TO MOTHER ITS AUTHORITY TO SET A VISITATION SCHEDULE FOR FATHER; FORENSIC MENTAL HEALTH EVALUATIONS AND COUNSELING MAY BE APPROPRIATE WHERE, AS HERE, A CHILD REFUSES VISITATION WITH A PARENT (FIRST DEPT).
The First Department, reversing Family Court, determined the court improperly delegated to mother the authority to control father’s visitation with the child. The First Department noted that forensic mental health examinations may be appropriate where, as here,? a child refuses to visit with a parent:
Here, Family Court’s order that the father have visitation as agreed between the parties in consultation with the child is an impermissible delegation of its authority to the mother and child, and essentially causes the father to have no visitation at all. Furthermore, despite the father’s lack of sensitivity to the child … we cannot find on this record that there was a showing adequate to justify terminating the father’s contact with the child; that is, that any form of contact under all circumstances would be harmful to the child’s welfare.
We note that Family Court may order forensic mental health evaluations where a visitation petition is pending and where doing so will facilitate the court’s determination (Family Court Act § 251[A]; 22 NYCRR 202.18). “[T]he value of forensic evaluations of the parents and children has long been recognized,” including when a child refuses to visit with a parent … . We further note that a court may place restrictions on visitation that promote the child’s best interests and are not unduly restrictive, including ordering therapeutic or other kinds of supervised visitation … . The court may also make directives as to the amount and type of contact a parent has with the child between visits. Finally, a court may direct a parent to attend counseling as a component of a visitation plan, where doing so promotes the child’s best interests … .?Matter of Michael B. v Patricia S., 2024 NY Slip Op 06005, First Dept 12-3-24
Practice Point: Family Court cannot not delegate to a parent its authority to set the other parent’s visitation schedule.
Practice Point: Where a child refuses to visit with a parent, the court may order forensic mental health evaluations and counseling.
December 3, 2024
ALTHOUGH THE GUARANTEES REQUIRED THAT THE TENANT SURRENDER THE PREMISES IN THE CONDITION DESCRIBED BY THE LEASE, THE GUARANTEES DID NOT INCORPORATE THE LEASE OR EXPRESSLY REQUIRE COMPLIANCE WITH THE SURRENDER TERMS OF THE LEASE; THEREFORE THE TENANT’S FAILURE TO COMPLY WITH THE SURRENDER TERMS OF THE LEASE DID NOT TRIGGER THE GUARANTORS’ OBLIGATIONS (FIRST DEPT).
The First Department, reversing Supreme Court, determined the language of the guarantees controlled and the guarantors were relieved of responsibility for the tenant’s rent payments when the tenant surrendered the property in compliance with the terms of the guarantees. Although the guarantees referred to surrendering the premises in the condition required by the lease, the guarantees did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger any obligation on the part of the guarantors:
… [T]he guarantees expressly limit defendants’ liability to the terms contained therein, which, as relevant here, only require that tenant surrender the premises in compliance with the surrender provisions set forth in the guarantees. While the guarantees mandated tenant surrender the premises in the condition required by the terms of the lease, they do not incorporate the terms of the underlying lease by reference … or expressly require that tenant’s surrender of the premises be performed pursuant to the terms of the lease … .
Therefore, while tenant was required to obtain written consent of the surrender from plaintiff under the lease, the motion court improperly determined that tenant’s failure to do so precluded the guarantors’ avoidance of liability for unpaid rent after tenant’s surrender … .?ROC-Lafayette Assoc., LLC v Sturm, 2024 NY Slip Op 06016, Frist Dept 12-3-24
Practice Point: The language of a guarantee is strictly construed. Here the guarantees required surrender of the premises in the condition described by the lease but did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger the guarantors’ responsibility for the tenant’s rent payments. The tenant had fully complied with the surrender terms in the guarantees.
December 3, 2024