Tuesday, April 24, 2018

CIVIL RIGHTS LAW SECTION 80-b



BILLITTIER v. Clark, 2014 NY Slip Op 50758 - NY: Supreme Court, Erie 2014:

"Prior to 1965, the law in New York State, referred to as the so called heart balm statute, prohibited a former fiancee from suing to recover property given in contemplation of marriage. This law was adopted primarily to prevent acrimonious lovers scorned from suing each other based on alleged alienation of affections, criminal conversation, seduction and breach of contract to marry. The lawsuits were subject to grave abuses and caused financial damage and emotional injury to many persons who were innocent of any wrong doing and were merely the victims of circumstance, Brandes, Joel S. NY Law Journal October 27, 1998 p. 1, col. 3 vol. 220. New York Civil Rights Law § 80-b became law in 1965 permitting erstwhile fiancees to recover chattel given in contemplation of marriage regardless of fault if no marriage occurs. The statute also allows for the recovery of real property and permits courts to award a lien to defendants for money expended in connection with the chattels or real property. There is a strong presumption that any gifts made during the engagement period are given solely in contemplation of marriage. This presumption is rebuttable, but clear and convincing proof is necessary to overcome it, Vasinkevich v. Elm Drugs, 208 AD2d 522 (2nd Dept. 1994) and Friedman v. Geller, 82 Misc 2d 291 (Civil Court NYC, Kings County 1975).

Most of the reported decisions on this issue in New York and nationwide recognize the unique essence and purpose of an engagement ring as being given in contemplation of marriage, Tomko, Elaine, Rights in Respect of Engagement and Courtship Presents When marriage Does Not Ensue, 44 A.L.R.5th 1 (1996) and Glassman, Adam, I Do! Or Do I?, 12 Buff. Women's L.J. 47 (2003). Therefore, fairness requires its return to the donor when no marriage occurs regardless of who is responsible for such failure, Gaden v. Gaden, 29 NY2d 80 (1971), Paulicic v. Vogtsberger, 390 PA 502, 136 A2d 127 (PA Sup. Ct. 1957, but, see, Lewis v. Permut, 66 Misc 2d 127 (Civil Court NYC, Queens County 1971), Addarich v. Ford, 35 Misc 3d 1231(A) (Sup. Ct. NYC, 2012) and Maiorana v. Rojas, 3 Misc 3d 1107 (Civil Court NYC, Kings County 2004). One common exception is where one of the parties is already married thus defeating the contemplation of a legal marriage since bigamy is illegal in New York and enforcement of § 80-b would be void as against public policy under those circumstances, Lowe v. Quinn, 27 NY2d 397 (1971) and Leemon v. Wicke, 216 AD2d 272 (2nd Dept. 1995). The result holds true even where the donee is already married, Witkowski v. Blaskiewicz, 162 Misc 2d 66 (Civil Court NYC, Queens County 1994). However, most of the reported decisions in New York reflect adherence to the legislative intent of § 80-b to restore the parties to their pre-engagement status by returning the engagement ring to its donor. This is true unless the once conditional gift is transformed into an ordinary gift, which is by definition irrevocable, that is, once given vests immediately and irrevocably in the donee, and the donor's later acts cannot revoke or retract it, 62 NY Jur § 54 (NY Jur 2nd Ed. 2014). To make a valid inter vivos gift, there must exist the intent on the part of the donor to make a present transfer delivery of the gift, either actual or constructive to the donee, and acceptance by the donee, Gruen v. Gruen, 68 NY2d 48 (1986), see, 62 NY Jur § 31 and Juliano v. Juliano, NYLJ p. 21, col. 3 (Sup. Ct. Kings Cty. 2014)."

Monday, April 23, 2018

IS IT A GIFT OR A LOAN?



JD v. AD, 2017 NY Slip Op 50261 - NY: Supreme Court, Richmond 2017:

"The essential elements of any cause of action to recover damages for a breach of contract are, (1) the existence of a contract, (2) the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual obligations, and (4) damages resulting from that breach. See 143 Bergen St. LLC v. Ruderman, 144 AD3d 1002 (2d Dept. 2016); See also Tudor Ins. Co. v. Unithree Inv. Corp., 137 AD3d 1259 (2d Dept. 2016). The burden of proving the existence, terms and validity of a contract rests on the party seeking to enforce it. See Amica Mut. Ins. Co. v. Kingston Oil Supply Corp. 134 AD3d 750 (2d Dept. 2015).

In contrast, a defendant attempting to establish that a particular transaction was a gift, rather than a loan, has the burden of proof to show, by clear and convincing evidence, that the transaction was made with the requisite "donative intent." See Phelps v. Phelps, 128 AD3d 1545 (4th Dept. 2015) As Defendant Husband has alluded to the Statute of Frauds, it is worth noting that certain contracts must be set forth in a writing. See General Obligations Law § 5-701; See also, Taranto v. Fritz, 83 AD2d 864 (2d Dept. 1981). However, an oral agreement may be enforceable so long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. See Kramer v. Greene, 142 AD3d 438 (1st Dept. 2016). An oral contract to repay a loan may be enforceable if the elements indicated above are met. See Alameldin v. Kings Castle Caterers, Inc., 53 AD3d 514 (2d Dept. 2008); See also King Serv. v. O'Brien, 206 AD2d 728 (3rd Dept. 1994).

Decision


Defendant Wife concedes that she and her Husband borrowed the money from her father. While this is not conclusive proof as to Husband, it is some evidence of the existence of a loan. Wife credibly testified that she and Husband were well aware that this loan had to be repaid in full within six months of the closing of the Amboy Road property. Her testimony, like the testimony of Plaintiff and J.C., was credible. Wife claims that Husband's claim that this money was a gift (notwithstanding the markings on each check indicating it was a loan) is in furtherance of a scorched earth litigation strategy against her and her family. Wife and Plaintiff also credibly testified that Husband agreed to repay Plaintiff the $280,000 only if Wife gave up custody of the two subject children in the underlying divorce case.

Beyond the admissions of Wife, this Court finds that Plaintiff has independently established the necessary elements of his breach of contract cause of action. Here, the contract at issue was oral in nature. Plaintiff credibly testified that he provided his daughter and son in law the combined sum of $280,000 on the condition that it be paid back within six months of the closing, without interest. While the terms of the contract were agreed to between the parties orally, both of the checks at issue clearly indicated that the amounts provided were "loans." (See Pl. Exs. 1;3). Plaintiff further established that Defendant Husband's conduct evidenced that he understood the terms, as Husband sent two text messages to Defendant Wife indicating that he knew that the amount was borrowed, and had to be paid back within six months. (See Pl. Exs. 5;6). See Burnside v. Foglia, 208 AD2d 1085 (3rd Dept. 1994). Accordingly, this Court finds that Plaintiff has established the existence of a contract by a preponderance of the evidence. See Van Wie Chevrolet, Inc. v. General Motors, LLC 145 AD3d 1 (4th Dept. 2016).

In opposition, Husband argues that the transaction at issue was actually a gift from Plaintiff to his daughter, as opposed to a loan. However, this Court finds Husband's testimony in support of this defense to be patently unbelievable, particularly in light of his own text admissions. Indeed, when asked why he would believe this money was a $280,000 gift when, in fact each check had the word "loan" written on them, he could offer no explanation other than to suggest that Plaintiff had given his daughter gifts in the past. As Husband has failed to provide any evidence of donative intent on the part of Plaintiff, his defense must fail. See In re Estate of MacGregor, 119 AD2d 909 (3rd Dept. 1986); See also Phelps v. Phelps, 128 AD3d 1545 (4th Dept. 2015). Accordingly, after listing to the testimony and considering the evidence at trial, this Court finds that the $280,000 given by Plaintiff to defendants was a loan, and not a gift as claimed by Husband.

The second element of a breach of contract action is not in dispute as both Defendants admit that they received the two checks totaling $280,000 that were deposited into their joint account. Accordingly, Plaintiff fulfilled his end of the contract by providing the funds. Plaintiff further established that the defendants herein breached the contract when they did not repay the sums loaned within the six month time period allotted, or upon his subsequent demand for repayment. Finally, the Court finds that the Plaintiff sustained damages as he has not recovered any of the amount that he loaned the parties.

Defendant Husband argues, in the alternative, that even if this Court were to find that the $280,000 given by Plaintiff to the defendants was a loan, that loan would be unenforceable under the Statute of Frauds. (Gen. Obl. Law Sec. 5-701(a). That statute provides, inter alia, that an agreement, is void unless it is reduced to a writing if by its terms it is not capable of being performed within one year's time. See General Obligations Law § 5-701(a).

Defendant Husband's reliance on the Statute of Frauds is wholly unpersuasive. First, and foremost this affirmative defense was not asserted in his Verified Answer (Pl. Ex. 8) and is therefore unavailable to him. See Ryan v. Kellogg Partners Institutional Servs., 79 AD3d 447 (1st Dept. 2010). Nor has the defendant made an application to amend his answer. See Zito v. County of Suffolk, 81 AD3d 722 (2d Dept. 2011). Moreover, even if this defense was properly before this Court (which it is not), it would not prevent Plaintiff's recovery here. The credible testimony of Plaintiff and Wife coupled with Husband's own text admissions confirm that the he and Wife had six months in which to repay the debt. As this debt was payable within one year, this statute would not apply even if it were properly plead. See Weksler v. Weksler, 140 AD3d 491 (1st Dept. 2016).

Husband next argues that if this Court finds that these funds constituted a loan, then it was a loan made only to Wife for which he bears no legal responsibility. This argument is equally unpersuasive. First, the Court credits Plaintiff's testimony that the loan was intended for the defendants as Husband and Wife. In fact, the loan benefitted Husband more than Wife, as it was intended to purchase property to house his electrical business. Moreover, as this loan was given during the defendant's marriage, and it obviously benefited both defendants, it constitutes marital debt that should be shared by the parties. See Gillman v. Gillman, 139 AD3d 667 (2d Dep't. 2016)."

Friday, April 20, 2018

MORE ON RPL 235 BB



As reported earlier, this new provision, which was signed into law on November 29, 2017, requires a valid certificate of occupancy to be disclosed prior to the execution of a rental agreement or lease between a landlord and a tenant, effective immediately upon enactment.

According to the Justification provision in the Senate Bill S6636 - Details:

"Some tenants may assume that when a landlord is offering a place to rent, that those housing accommodations are safe and up to code. However, that isn't necessarily the case. In fact, some landlords are seeking additional profits by allowing more tenants into a house or building than would otherwise be allowed. For example, a landlord may take a two-family house, which was once only home to two families, and instead make illegal conversions inside the two-family house such that five or six families are living there. These illegal conversions present not only the obvious concerns of the safety of those individuals living there, but they also cause our neighborhoods and schools to become overcrowded because our city planners are assuming that a two-family house only has two families in it, and not five or six. This bill would protect tenants by requiring landlords to disclose whether a certificate of occupancy is on file, if the building is required to have one, for the property being rented and that it is valid. Alternatively, landlords could provide a copy of the certificate of occupancy to the tenants."

Wednesday, April 18, 2018

NYC - RIGHT TO COUNSEL IN HOUSING COURT



Last summer, NYC signed into law an amendment to Title 26, Chapter 13 of the Administrative Code which provides, in pertinent part:

"§ 26-1302 Provision of legal services.
   a.   Subject to appropriation, the coordinator shall establish a program to provide access to legal services for covered individuals in covered proceedings in housing court and shall ensure that, no later than July 31, 2022:
      1.   all covered individuals receive access to brief legal assistance no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable; and
      2.   all income-eligible individuals receive access to full legal representation no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable.
   b.   Subject to appropriation, no later than October 1, 2017, the coordinator shall establish a program to provide access to legal services in administrative proceedings of the New York city housing authority for tenants of buildings operated by the New York City housing authority who have been served with charges in such administrative proceedings for termination of tenancy and shall ensure that, no later than July 31, 2022, all such tenants receive access to such legal services.
   c.   The coordinator shall estimate annually the expenditures required for each year of implementation of the programs described by subdivisions a and b of this section. Beginning October 1, 2022 and no later than each October 1 thereafter, the coordinator shall publish a summary of any changes to such estimates for expenditures.
   d.   The coordinator shall annually review the performance of designated organizations.
   e.   The coordinator shall require each designated organization to identify the geographic areas for which such organization will provide legal services. For each such geographic area, the coordinator shall maintain a list of such organizations that provide such legal services.
   f.   Any legal services performed by a designated organization pursuant to this chapter shall not supplant, replace, or satisfy any obligations or responsibilities of such designated organization pursuant to any other program, agreement, or contract.
   g.   Nothing in this chapter or the administration or application thereof shall be construed to create a private right of action on the part of any person or entity against the city or any agency, official, or employee thereof.
(L.L. 2017/136, 8/11/2017)"

Basically, the new rule provides that at the end of 5 years, all income eligible tenants will be ensured an attorney when fighting their eviction in housing court.  Tenants who are over income, have the right to a consultation with an attorney.  It also provides for NYCHA tenants whose cases happen in administrative hearings, to have representation as well.

Tuesday, April 17, 2018

MORE ON ILLEGAL APARTMENTS



Governor Andrew Cuomo signed a new piece of legislation into law this past December to curb illegal conversions in buildings with three or fewer dwelling units.

"Real Property (RPP) Section 235-BB Certificates of occupancy; required disclosure to tenant

1. Prior to executing a residential lease or rental agreement with a tenant, the owner of real property consisting of three or fewer rental units shall provide conspicuous notice in bold face type as to whether a certificate of occupancy, if such certificate is required by law, is currently valid for the dwelling unit subject to the lease or rental agreement. Owners who provide the tenant with an actual copy of the valid certificate of occupancy shall be deemed to have complied with the requirements of this subdivision.

2. Any agreement by a lessee or tenant of premises for dwelling purposes waiving or modifying his or her rights as set forth in this section shall be void as contrary to public policy."

The law makes no mention of any penalty should a landlord fail to comply.

Monday, April 16, 2018

E TRACK


For counsel and/or pro see litigants in litigation, this is an essential. eTrack is a case tracking service which enables you to receive email updates and appearance reminders for Civil Supreme and Local Civil Court cases, as well as Criminal cases in Local and Superior Courts in 13 counties. eTrack is a free service provided by the New York State Unified Court System. Case Updates are emails which are automatically generated every time the court staff updates a case in their computer system (for example, if an appearance is adjourned to another date). Appearance Reminders are emails sent out a predetermined number of days before an appearance is scheduled (you can choose whether a reminder is sent 1, 7, 15 or 30 days before the appearance date).

For more information, see https://iapps.courts.state.ny.us/webcivil/etrackUserGuide


Friday, April 13, 2018

TESTIMONY OF CHILD IN NEGLECT PROCEEDING



Matter of Mirza S.A. (Mirza A A.), 2018 NY Slip Op 02455, Decided on April 11, 2018, Appellate Division, Second Department:

"The Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging that the father neglected the subject child by engaging in acts of domestic violence in the child's presence. After a fact-finding hearing, the Family Court found that the father neglected the child. Subsequently, the court issued an order [*2]of disposition, releasing the child to the custody of the nonrespondent mother under the supervision of ACS for a period of 12 months. The father appeals.

The appeal from so much of the order of disposition as released the child to the mother's custody under the supervision of ACS for a period of 12 months must be dismissed as academic, as that portion of the order has expired (see Matter of Justin P. [Damien P.], 148 AD3d 903, 903; Matter of Ethan B. [Frederick B.], 130 AD3d 816, 816). However, the appeal from the portion of the order of disposition which brings up for review the finding that the father neglected the child is not academic, since the adjudication of neglect constitutes a permanent and significant stigma, which might indirectly affect the father's status in future proceedings (see Matter of Justin P. [Damien P.], 148 AD3d at 904; Matter of Ethan B. [Frederick B.], 130 AD3d at 817).

To establish neglect, the petitioner must demonstrate by a preponderance of the evidence, "first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with the proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368; see Family Ct Act §§ 1012[f][i]; 1046[b][i]). Here, the Family Court's finding that the father neglected the child is supported by a preponderance of the evidence (see Matter of Jaden J. [Ernest C.], 106 AD3d 822; Matter of Jayden B. [Erica R.], 91 AD3d 1344, 1345; Matter of Elijah J. [Phillip J.], 77 AD3d 835).

At the hearing, the Family Court concluded that the child would suffer emotional trauma if compelled to testify in front of the father (see Matter of Michael U. [Marcus U.], 110 AD3d 821; Matter of Elisha M.W. [Ronald W.], 96 AD3d 863; Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961). The court thus permitted the child to testify outside the father's presence. Nevertheless, to protect the father's rights, the court arranged for the father to view the testimony via video linkup, granted a recess after the completion of ACS's direct case to permit the father and his attorney time to consult before cross-examining the child, and permitted a further recess after the completion of that cross-examination for further consultation. The court's conclusion that the child would suffer trauma if compelled to testify in the father's presence was reasonable. Moreover, in its balancing of the respective rights and interests of the parties, the court did not improvidently exercise its discretion. Finally, because the father's attorney was present during the child's testimony and cross-examined him on the father's behalf, neither the father's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony (see Matter of Q.-L. H., 27 AD3d 738, 739; see also Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961; Matter of Sylvia J., 23 AD3d 560)."

Thursday, April 12, 2018

CLAIMING IMPROPER SERVICE



BAC Home Loans Servicing, LP v Carrasco, 2018 NY Slip Op 02443, Decided on April 11, 2018, Appellate Division, Second Department:

"A process server's affidavit of service gives rise to a presumption of proper service (see Machovec v Svoboda, 120 AD3d 772, 772; Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112 AD3d 813, 814). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d 716, 716 [citation omitted], quoting Simonds v Grobman, 277 AD2d 369, 370; see American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Edwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824). Here, the affidavit of the defendant Andres H. Carrasco, which was submitted in support of his motion, inter alia, to dismiss the complaint insofar as asserted against him, set forth that he did not receive the pleadings, but did not deny the specific facts contained in the process server's affidavit (see U.S. Bank N.A. v Telford, 153 AD3d 881, 882; Bank of N.Y. v Samuels, 107 AD3d 653, 654; Christiana Bank & Trust Co. v Eichler, 94 AD3d 1170, 1171). Carrasco's conclusory assertion was inadequate to rebut the presumption of proper service (see U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988-989; Bank of N.Y. v Espejo, 92 AD3d 707, 708). Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances of this case, the order directing that hearing must be reversed, and the order made after the hearing must be vacated (see Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717; Washington Mut. Bank v Huggins, 140 AD3d 858, 859)."

Wednesday, April 11, 2018

NASSAU COUNTY EXPANSION OF CONSENSUAL E FILING

By notice dated April 3, 2018, an announcement was made regarding an update on the progress of the New York State Courts' Electronic Filing System ("NYSCEF"). As authorized under Chapter 237 of the Laws of 215, expansion of the consensual e-filing program has been proposed by the District Administrative Judge of the 10th Judicial District and the Nassau County Clerk lo take effect May 23, 2018. As of the effective date, the authorization will be to expand the consensual e-filing program to include newly filed matrimonial and CPLR Article 78 proceedings.

Tuesday, April 10, 2018

UNEMPLOYMENT INSURANCE - MISCLASSIFICATION



State of New York Supreme Court, Appellate Division,Third Judicial Department, Decided and Entered: March 29, 2018, 524951, In the Matter of the Claim of WALTER O. COWAN:

"Bimbo Foods Bakeries Distribution, Inc. (hereinafter the company) produces and distributes fresh baked goods under a variety of names and labels to chain stores and restaurants. Claimant entered into a distribution agreement with the company's predecessor in interest and purchased the rights to deliver those products in a specified geographic area.  After claimant ceased delivering for the company and sought a determination regarding unemployment insurance benefit coverage, the Department of Labor determined that claimant was an employee of the company and found it liable for additional unemployment insurance contributions. The company disputed the finding, asserting that claimant was an independent contractor.  Following a hearing, the Unemployment Insurance Appeal Board ultimately found that an employer-employee relationship existed and sustained the initial determination assessing additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated individuals.  The company appeals.

"Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the . . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983] [citations omitted]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]).  "An employer-employee relationship exists when the evidence demonstrates that the [purported] employer exercises control over the results produced by claimant or the means used to achieve the results" (Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004] [citation omitted]).  The control over the means employed is the more important factor to be considered (see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at 437; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984]).  "All aspects of the arrangement must be examined to determine whether the degree of control and direction reserved to the [purported] employer establishes an employment relationship" (Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691, 692 [1981] [citations omitted]).

Initially, we are unpersuaded by the company's contention that the Board erred in determining that claimant was an employee as a matter of law pursuant to Labor Law § 511 (1) (b).  Labor Law § 511 (1) (b) defines "[e]mployment" for unemployment insurance purposes to include "any service by a person for an employer . . . as an agent-driver or commission-driver engaged in distributing . . . bakery products."  According to the company, claimant did not earn a commission but earned revenue upon selling the bakery products that he purchased at prices set by him.  The record, however, supports the Board's finding that the actual relationship between the parties did not constitute that of a buyer and seller.  No money was exchanged in connection with claimant's alleged purchases and, pursuant to the terms of the distribution agreement, he was credited for returned stale products.  Further, any hypothetical change in pricing negotiated by claimant with customers would only have resulted in a smaller commission as calculated by a set percentage.  The company also asserts that the remuneration earned by claimant was not a "commission" as defined in Labor Law § 191-a (a), but overlooks that said definition is limited to issues relating to the payment of wages under Labor Law article 6 (see Klepner v Codata Corp., 139 Misc 2d 382, 385 [1988], affd 150 AD2d 994 [1989]).  In view of the foregoing, substantial evidence supports the Board's finding that claimant earned a commission and qualified as an employee under Labor Law § 511 (1) (b).

Additionally, we find that substantial evidence supports the Board's finding that the company exercised sufficient supervision, direction and control over claimant to establish an employer-employee relationship under common-law principles.  The company retained numerous rights under the distribution agreement, including the right to set the price of the products sold to claimant and the right to negotiate with chain outlets to determine price and terms of sale, and it retained the authority to sell distribution rights purchased by claimant or perform his delivery obligations under certain circumstances.  Claimant was further required to deliver fresh products and remove stale products in a defined area, sell any additional products provided by the company, cooperate with its marketing programs, remit settlement information to it each week, maintain certain chain outlet customers even if not profitable to him and not engage in any business activity that directly competed with the company or interfered with his obligations under the distribution agreement. In addition, claimant was interviewed by the company, relied on certain equipment and supplies provided by it, was paid on a weekly basis and was trained, instructed, supervised and monitored by a company manager regarding his deliveries. Considering the foregoing, we find no reason to disturb the Board's finding that the company exercised sufficient control over claimant and those similarly situated to establish an employer-employee relationship, despite evidence in the record that could support a contrary conclusion (see Matter of Mastroianni Bros., Inc. [Commissioner of Labor], 130 AD3d 1117, 1119 [2015]; Matter of Francis [West Sanitation Servs.-Sweeney], 246 AD2d 751, 752 [1998], lvs dismissed 92 NY2d 886 [1998], 93 NY2d 833 [1999]; Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 222 [1988]; Matter of Oakes [Stroehman Bakeries-Roberts], 137 AD2d 927, 928 [1988])."

Monday, April 9, 2018

CUSTODY ISSUES OF CHILDREN WITH SPECIAL NEEDS



Matter of Griffin v Danzy, 2018 NY Slip Op 02324 ,Decided on April 4, 2018, Appellate Division, Second Department:

"The parties, who were never married, have two children together, twins born in April 2012. The children, who were born prematurely, have several health issues, including chronic lung disease and asthma, and one child has a heart defect.

In July 2013, the father filed a petition for custody and visitation. Thereafter, temporary orders of visitation were issued, granting the father alternate weekend visitation with the children, initially supervised by the mother, and later with the assistance of the children's home health aide. After a hearing, the Family Court, inter alia, granted the father unsupervised, overnight visitation on alternate weekends, to commence gradually after the mother had provided the father with an updated list of the children's physicians and the father had contacted each physician regarding the children's diagnoses and medications. The mother appeals.

The court's paramount concern in adjudicating visitation rights is the best interests of the child (see Matter of Murphy v Lewis, 149 AD3d 748, 749; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d 868, 868; Matter of Morocho v Jordan, 123 AD3d 1037, 1037). "Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child" (Cervera v Bressler, 50 AD3d 837, 839 [internal quotation marks omitted]; see Matter of Murphy v Lewis, 149 AD3d at 750; Matter of Lopez v Lopez, 127 AD3d 974, [*2]974; Matter of Blazek v Zavelo, 127 AD3d 854, 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). "Since custody and visitation determinations necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings'" (Matter of James M. v Kevin M., 99 AD3d 911, 913, quoting Matter of Elliott v Felder, 69 AD3d 623, 623). Thus, the determination of whether visitation should be supervised is a matter within the sound discretion of the Family Court and should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868; Matter of Dolan v Masterton, 121 AD3d 979, 981; Irizarry v Irizarry, 115 AD3d 913, 915; Matter of Brian M. v Nancy M., 227 AD2d 404, 404; Matter of Gerald D. v Lucille S., 188 AD2d 650, 650).

Here, the record does not support a conclusion that overnight, unsupervised visitation would be detrimental to the children. Further, the requirements imposed by the Family Court's order, including requiring the mother to provide contact information for all of the children's doctors, requiring the father to contact each doctor to obtain information about the children's diagnoses and medications, and introducing the overnight visitation gradually, while ensuring the assistance of the children's home health aide, are designed to protect the children while encouraging the bond between the children and the father (see Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). Accordingly, the court's visitation determination had a sound and substantial basis in the record, and will not be disturbed (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Dolan v Masterton, 121 AD3d at 981; Irizarry v Irizarry, 115 AD3d at 915; Matter of Gerald D. v Lucille S., 188 AD2d at 650).:

Friday, April 6, 2018

CHILD'S EXPOSURE TO PARENTS' DOMESTIC VIOLENCE



Matter of John M.M. (Michael M.), 2018 NY Slip Op 02326, Decided on April 4, 2018, Appellate Division, Second Department:

"The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that Michael M. (hereinafter the father) neglected the subject child by committing acts of domestic violence against the child's mother in the presence of the child. After the close of the petitioner's case, the Family Court granted the father's motion to dismiss the petition for failure to establish a prima facie case and dismissed the petition. The petitioner appeals.

"To establish neglect, [a] petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" (Matter of Chaim R. [Keturah Ponce R.], 94 AD3d 1127, 1130; see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]; Nicholson v Scoppetta, 3 NY3d 357, 368). Although the exposure of a child to domestic violence between parents may form the basis for a finding of neglect (see e.g. Matter of Jihad H. [Fawaz H.], 151 AD3d 1063, 1064; Matter of Moises G. [Luis G.], 135 AD3d 527; Matter of Andrew Y., 44 AD3d 1063, 1064), "exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence [*2]is at risk of impairment" (Nicholson v Scoppetta, 3 NY3d at 375 [emphasis omitted]; see Matter of Kiana M.-M. [Robert M.], 123 AD3d 720, 721).

Contrary to the Family Court's determination, viewing the evidence in the light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the evidence (see Matter of Jaivon J. [Patricia D.], 148 AD3d 890, 892), the petitioner presented a prima facie case of neglect against the father. At the fact-finding hearing, the petitioner presented, among other things, the hearsay testimony of a police officer who testified that the mother described the father throwing an object at her head, choking her, and throwing her to the ground at the side of their bed, causing her to lose consciousness. Certified hospital records that the petitioner also introduced into evidence generally corroborated the mother's statements, including her statement that the child, who was then 11 months old, was lying on the parents' bed throughout the assault. Accordingly, the court erred in granting the father's motion to dismiss the petition (see Matter of Isabella S. [Robert T.], 154 AD3d 606, 606-607; Matter of Jihad H. [Fawaz H.], 151 AD3d at 1064; Matter of Cody W. [Ronald L.], 148 AD3d 914, 916; Matter of Tamara D. [Randolph P.], 120 AD3d 813, 813; Matter of Kiara C. [David C.], 85 AD3d 1025, 1026). Since the court terminated the proceeding after the close of the petitioner's direct case upon an erroneous finding that a prima facie case had not been established, there must be a continued fact-finding hearing for the father to present his case, if he be so advised, and a new determination thereafter (see generally Matter of Jaivon J. [Patricia D.], 148 AD3d at 892; Matter of Marques B. [Eli B.], 133 AD3d 654, 655)."

Thursday, April 5, 2018

DISPUTES WITH NEIGHBORS



This is an old case, 1980, but is still cited as authority, most recently in Coffey v. GERELLI, 2017 NY Slip Op 50817 - NY: Appellate Term, 2nd Dept. 2017 ("When the branches of a tree overhang the property of an adjoining landowner, the adjoining landowner may resort to self help to remove those branches (see 1 NY Jur 2d, Adjoining Landowners § 65). The right to self help extends to ordinary trimming and clipping, and does not extend to the destruction of, or injury to, the main support systems of the tree; nor does it extend past the adjoining landowner's property line").

Turner v. Coppola, 102 Misc. 2d 1043 - NY: Supreme Court, Nassau 1980:

"This is an action for omnibus relief due to an alleged nuisance. The adversaries own and reside upon adjoining lots in the Village of Malverne, Nassau County, New York.

As a first cause of action in equity, plaintiff alleges that leaves, twigs, branches, and buds from defendants' trees constantly fall upon plaintiff's property, cluttering the lawn, driveway, and sewer vents. Plaintiff further alleges a continuing hardship in excessive time, money, and labor expended to collect and transport this accumulated tree rubbish.

As a second cause of action in law, plaintiff alleges, pursuant to section 871 of the Real Property Actions and Proceedings Law, that some of defendants' tree branches overhang and encroach upon her premises, cause cosmetic damage to her garage, prevent her lawn from receiving adequate sunlight, and deprive her of the exclusive, safe use and enjoyment of her property.

Defendants' motion to dismiss the complaint for failure to state a cause of action is based upon an allegation of damnum absque injuria, or harm without injury in the legal sense.

The primary issue before this court is whether or not plaintiff has stated a cause of action, in equity or in law, for the alleged damages caused by defendants' trees which are in close proximity to plaintiff's property.

1045*1045The specific question raised is whether the overhanging branches and/or accumulated fallen leaves, branches, and buds, under the circumstances stated, constitute a nuisance or other actionable legal theory, entitling plaintiff to relief.

When plaintiff states in her affidavit in answer to defendants' motion for dismissal of the complaint that this action does not fall within the category of nuisance or negligence or self-help "by clipping off the offensive encroaching branches", this court agrees in part.

The essence of a private nuisance is interference with the use and enjoyment of land amounting to an injury in relation to a right of ownership in that land. (Kavanagh v Barber, 131 N.Y. 211; Mandell v Pivnick, 20 Conn Supp 99.) Since the trees in this case are not poisonous or noxious in their nature, they are not a nuisance per se, in such a sense as to sustain an action for relief. (Countryman v Lighthill, 24 Hun 405.)

Recovery for damages from overhanging branches depends upon the presence of actual injury to plaintiff or plaintiff's property. Upon the facts stated and the allegations made in the complaint, there is insufficient basis for an action as a private nuisance because real, sensible damage has not been shown to result from the overhanging tree branches or leaves. (Countryman v Lighthill, supra.) There is some difference of opinion as to the extent of damages required to constitute sensible or substantial damages, only that without this showing, an action in nuisance does not arise. The cases are in agreement that trees ordinarily are not nuisances, unless decayed or otherwise dangerously unsound. (Gibson v Denton, 4 App Div 198.) One standard for measuring the degree of damage in this area is definite offensiveness, inconvenience or annoyance to the normal person in the community where the customs of the community are to be taken into account. (Wade v Miller, 188 Mass 6; Restatement, Torts, § 822, comment g.)

Neither does plaintiff have an action in trespass. The majority of cases distinguish trespass from nuisance on the ground that trespass is an invasion of the plaintiff's interest in the exclusive possession of her land. If such an invasion also deprives plaintiff of the use and enjoyment of her land, then nuisance would jointly arise (Burk v High Point Homes, 22 Misc 2d 492) so long as the interference causes substantial harm for the nuisance action and intentional intrusion for the 1046*1046 trespass action. (Restatement, Torts 2d, § 166.) We do not find such interference or intrusion here.

Neither does plaintiff have an action in negligence. There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew (Sheldon v Sherman, 42 N.Y. 484) provided such injury arises from a fortuitous occurrence beyond the control of man, without his fault or negligence. Certainly, if liability does not ensue in negligence for falling trees, therefore it cannot ensue in negligence for falling leaves and overhanging branches which cause cosmetic damage to a garage or block the sun from a sod-covered lawn. In these cases, the party through whom such acts occur is not responsible for it. (Sheldon v Sherman, supra.)

Since our statutes do not accord a remedy to one whose personal enjoyment and use of private property is lessened by mere overhanging tree branches or falling leaves, there is no statutory ground for damages or abatement of the alleged injury.

Summary abatement by self-help under these circumstances is a sufficient remedy. (Countryman v Lighthill, supra.) Just as it has been established that a property owner may resort to self-help in the first instance to remove tree roots adversely affecting his land (Michalson v Nutting, 275 Mass 232; Colombe v City of Niagara Falls, 162 Misc 594; Ferrara v Metz, 49 Misc 2d 531) so it has been held with the removal of overhanging tree branches. We do not see this burden as an unreasonable one upon the plaintiff. Such a limitation upon the rights of a landowner is proper with respect to innoxious tree branches and leaves, as they are readily visible, unlike roots, and may be cut and collected without great difficulty. (Norwood v City of New York, 95 Misc 2d 55.) Indeed, such natural growth and shedding processes of trees are inherent in such an area, and to most people constitute a pleasurable reflection of seasonal changes.

Plaintiff's right to ordinary trimming and clipping of the overhanging branches does not extend to destruction or injury to the main support systems of the tree. (Spadaro v Putter, 108 NYS2d 343; Adams v Hahne, 59 Misc 2d 827, where controlled clipping of an encroaching hedge was allowed but 1047*1047 legal action was not.) In any event, plaintiff may not go beyond the property line to cut or destroy part or all of a tree on the adjoining land unless the tree becomes a private nuisance as to an abutting owner, due to its rotted and diseased condition. (Childers v New York Power & Light Corp., 275 App Div 133.)

Under the maxim de minimis non curat lex, we further believe that the alleged damages are not substantial enough to seriously interfere with the use and enjoyment of the plaintiff's premises (Ungrich v Shaff, 119 App Div 843) or to require this court's further attention.

Clashing land uses require an examination of the character of the neighborhood as well as the character of the defendants' and plaintiff's alleged harms and equities within a balancing framework. Using such a framework, upon these facts, this court is not persuaded that plaintiff has suffered unreasonable injury or that she carries an unreasonable burden by continued exercise of her right to cut off the offending, overhanging branches and bag or rake the offending leaves. Plaintiff moved into this neighborhood only eight years ago, with knowledge of the trees already there and of their visible maturity. If a valid nuisance does arise in the future, however, plaintiff would not be barred from complaining about it merely because the nuisance was there first. (Campbell v Seaman, 63 N.Y. 568.)

On the other half of the scale, it appears that defendants would bear an unreasonable burden in being held responsible for natural conditions over which they have little, if any, control. Certainly, mature trees, rooted and growing for many years before defendants or plaintiff moved into their respective homes, would qualify as such.

In conclusion, one whose land is intruded upon by tree branches and leaves, which are not poisonous or inherently injurious to the extent of sensible or substantial damages, or of reasonable foreseeability, has no cause of action against adjoining landowners of such trees, but may protect herself therefrom by reasonable cutting of branches to the extent that they invade her property and no more.

We have not considered the jurisdictional question raised by the defendants insofar as it relates to improper service of process for two reasons: (1) the objection is raised on the basis of an attorney's affidavit which consists mainly of hearsay 1048*1048 evidence which is not considered by this court; and (2) the objection is considered moot by the decision of this court."