NEW YORK STATE SUPREME COURT PUBLISHED DECISIONS 1994-2003

1994:YONKERS CITY COURT, NEW YORK STATE

Celona v. Celona

New York Law Journal, March 25, 1994, p. 36, col. 2, Yks. City Ct., former wife seeks unpaid alimony; history of Small Claims Courts.

Andre v. Pace University

161 Misc. 2d 613, 618 N.Y.S. 2d 975, 1994, students seek tuition refund; breach of contract; rescission; breach of fiduciary duty; educational malpractice; consumer protection statute, General Business Law 349, rev'd 170 Misc. 2d 893, 655 N.Y.S. 2d 777, N.Y.A.T. 1996.

Bartolomeo v. Runco

162 Misc. 2d 485, 616 N.Y.S. 2d 695, 1994, tenant seeks damages for eviction from illegal apartment; breach of contract; breach of covenant of quiet enjoyment; fraudulent misrepresentation; consumer protection statute, General Business Law 349.

DiPasquasio v. City of Yonkers

New York Law Journal, September 16, 1994, p. 31, col. 1, Yks. City Ct., taxpayer seeks damages for tire blow out caused by pothole; negligence.

Nationwide Exterminating & Deodorizing Inc. V. B. Wanda

New York Law Journal, August 19, 1994, p. 24, col. 4, Yks. City Ct., exterminator seeks to recover money for services rendered; motion to vacate default denied.

Rossi v. 21st Century Concepts, Inc.

162 Misc. 2d 932, 618 N.Y.S. 2d 182, 1994, consumer returns pots and pans and seeks refund; consumer protection statutes, Door-To-Door Sales Protection Act and General Business Law 349; rescission.

Ricciardi v. Frank d/b/a InspectAmerica Engineering, P.C.

163 Misc. 2d 337, 620 N.Y.S. 2d 918, 1994, mod'd 170 Misc. 2d 777, 655 N.Y.S. 2d 242, N.Y.A.T. 1996, homeowners sue professional engineer for inspection malpractice; negligent inspection; negligent misrepresentation; consumer protection statute, General Business Law 349.

Yochim v. Mount Hope Cemetery Association

163 Misc. 2d 1054, 623 N.Y.S. 2d 80, 1994, consumers sue cemetery for failing to maintain grave sites; breach of contract; rescission; breach of fiduciary duty.

Friedland Realty, Inc. V. East Main, Inc.

New York Law Journal, November 9, 1994, p. 26, col. 4, Yks. City Ct., real estate broker seeks commission; breach of contract.

Djordjevic v. King Bear Auto Service Center

New York Law Journal, November 14, 1994, p. 32, col. 1, Yks. City Ct., consumer seeks damages from mechanic after engine burns up; negligence.

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1995:YONKERS CITY COURT, NEW YORK STATE

Eagel v. Yonkers Racing Corporation

165 Misc. 2d 944, 630 N.Y.S. 2d 662, 1995, New York State Racing and Waging Board seeks to intervene in gambler's dispute.

Gellerman v. Oleet

164 Misc. 2d 715, 625 N.Y.S. 2d 831, 1995, buyers seek to recover attorneys fees from sellers of house; promissory estoppel.

Yochim v. McGrath

165 Misc. 2d 10, 626 N.Y.S. 2d 685, 1995, tenant seeks damages after eviction from illegal sublet; breach of contract; breach of covenant of quiet enjoyment; consumer protection statute, General Business Law 349; fraudulent misrepresentation.

Hansen v. American Infusion Services, Inc.

New York Law Journal, June 12, 1995, p. 37, col. 3, Yks. City Ct., quitting salesperson seeks recovery of sales commission draw; breach of employment contract.

Pellegrini v. Landmark Travel Group

165 Misc. 2d 589, 628 N.Y.S. 2d 1003, 1995, consumer seeks refund of cost of vacation package; breach of contract; negligence; negligent misrepresentation; breach of fiduciary duty; consumer protection statute, General Business Law 349.

Spatz v. Axelrod Management Co., Inc.

164 Misc. 2d 759, 630 N.Y.S. 2d 461, 1995, tenants seek damages for water damage to apartments; strict liability; breach of warranty of habitability, Real Property Law 235-b.

Nardi v. Gonzalez

165 Misc. 2d 336, 630 N.Y.S. 2d 215, 1995, dog owner seeks damages for dog bite; strict liability-vicious dog.

Farrauto, Berman, Fontana & Selznick v. Keowongwan

166 Misc. 2d 804, 634 N.Y.S. 2d 346, 1995, lawfirm seeking fees is charged with malpractice; legal malpractice.

Giarrantano v. Midas Muffler

166 Misc. 2d 390, 630 N.Y.S. 2d 656, 1995, consumer seeks damages for breach of warranty on defective brake shoes; UCC 2-316(1); UCC 2-719(2); consumer protection statutes, General Business Law 617(2)(a) and General Business Law 349; breach of warranty.

Anilesh v. Williams

New York Law Journal, November 15, 1995, p. 38, col. 2, Yks. City Ct., landlord can not recover unpaid rent for illegal apartment; breach of lease agreement.

Mongelli v. Cabral

166 Misc. 2d 240, 632 N.Y.S. 2d 927, 1995, bird owners seek recovery of pet cockatoo named Peaches; action to recover a chattel.

Brown v. Hambric

168 Misc. 2d 502, 638 N.Y.S. 2d 873, 1995, instant travel agents, educational fraud and pyramid schemes; breach of contract; consumer protection statutes, General Business Law 359-fff and General Business Law 349; rescission.

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1996: YONKERS CITY COURT, NEW YORK STATE

Tri-County Audiology P.C. v. Applied Behavior Analysis Corp.

New York Law Journal, January 23, 1996, p. 31, col. 4, Yks. City Ct., tortious interference of an ' at will ' contract requires a higher level of malice than contracts of a fixed duration.

DiCesare v. Ferncliff Manor for the Retarded, Inc.

New York Law Journal, February 2, 1996, p. 34, col. 5, Yks. City Ct., employee wins dispute over accrued vacation pay because an ambiguous written vacation policy allows admission of extrinsic evidence supporting employee's position; breach of employment contract.

People v. McLean Car Wash, Inc.

New York Law Journal, February 20, 1996, p. 30, col. 6, Yks. City Ct., car wash placed illegal signs on sidewalks and telephone polls for 50 years; found in violation of sign ordinance and fined; City had " abysmal record of enforcing its statutes ".

Walker v. Winks Furniture

168 Misc. 2d 265, 640 N.Y.S. 2d 428, 1996, furniture store falsely promises a delivery date of one week; disclaimers void; rescission; consumer protection statutes, Merchandize Delivery Act and General Business Law 349.

Benitez v. Restifo

167 Misc. 2d 967, 641 N.Y.S. 2d 523, 1996, landlord allows third floor tenant to intentionally cause flood to another tenant's basement apartment; breach of covenants of quiet enjoyment and warranty of habitability, Real Property Law 235-b.

Weisz v. City of Yonkers

168 Misc. 2d 901, 644 N.Y.S. 2d 950, 1996, State and City liable for damages to vehicle caused by pothole; State Highway Law 58 does not preempt local common law duties; negligence.

Rubinoff v. U.S. Capitol Insurance Co.

New York Law Journal, May 10, 1996, p. 31, col. 3, Yks. City Ct., insurance company fails to provide defense; breach of insurance contract; negligent misrepresentation; consumer protection statute, General Business Law 349.

Posillico v. Freeman

New York Law Journal, June 18, 1996, p. 33, col. 6, Yks. City Ct., chiropractor limited to no-fault insurance payments; contract in which patient agreed to pay all unpaid fees deemed void.

Williams v. Carson

New York Law Journal, July 15, 1996, p. 26, col. 6, Yks. Cty. Ct., owner of vehicle unable to rebut presumption of permissive use by brother who stole vehicle and caused accident; negligence.

Millan v. Yonkers Avenue Dodge, Inc.

New York Law Journal, September 17, 1996, p. 26, col. 5, Yks. Cty. Ct., 72 hour " cooling off " rescission rights period does not apply to sale of used cars; New York's Used Car Lemon Law preempts " cooling off " concept and requires opportunity to cure defects; consumer protection statutes, Personal Property Law Section 428; General Business Law Section 198-b.

Buell v. Cablevision

New York Law Journal, September 27, 1996, p. 32, col. 2, Yks. Cty. Ct., witness fee dispute arising from trial subpoenas served by television personality Glendora dismissed and referred to United States District Court.

Ritchie v. Empire Ford Sales, Inc.

New York Law Journal, November 7, 1996, p. 30, col. 3, Yks. Cty. Ct., used car burns up 4 years after purchase because of defective ignition switch, the subject of a subsequent recall notice; dealer liable under consumer protection statutes, Vehicle and Traffic Law Section 417 and General Business Law Section 349 and strict products liability doctrine.

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1997:YONKERS CITY COURT, NEW YORK STATE

People v. Ziad Alghzai

New York Law Journal, January 21, 1997, p. 32, col. 6, Yks. Cty. Ct., failure to produce case file meant that prosecutor's declaration of readiness was illusory and had not stopped the running of the speedy trial clock; indictment dismissed.

Watson v. R & L Brokerage Inc.

New York Law Journal, January 23, 1997, p. 33, col. 3, Yks. Cty. Ct., insurance broker waited three days to mail application during which insured's car was stolen; broker negligent in failing to timely mail or fax application and liable for value of car.

Cambridge v. Telemarketing Concepts, Inc.

171 Misc. 2d 796, 655 N.Y.S. 2d 795, 1997, corporation fails to honor agreement to provide scholarship to employee; breach of contract and violation of consumer protection statute, General Business Law Section 349.

Sharknet Inc. v. Techmarketing, NY Inc.

New York Law Journal, April 22, 1997, p. 32, col. 3, Yks. Cty. Ct., Internet conference and exhibition promoter misrepresented number of attendees and length of Internet exhibition to developer of commercial Web sites; breach of contract and violation of consumer protection statute, General Business Law Section 349, aff'd N.Y. App. Term, December 7, 1999.

Oxman v. Amoroso

172 Misc. 2d 773, 659 N.Y.S. 2d 963, 1997, couple fires abusive aupair and seeks refund of contract price; consumer contract containing forum selection clause, Utah, choice of law clause, Utah, and damages limitations clause held unenforceable; breach of contract, negligent misrepresentation and violation of consumer protection statute, General Business Law Section 349.

DiMarzo v. Terrace View

New York Law Journal, June 9, 1997, p. 34, col. 3, Yks. Cty. Ct., restaurant patron loses expensive cashmere coat; restaurant liable for replacement cost on theories of bailment and negligence; General Business Law Section 201 not apply, aff'd & remanded for new trial on damages, App. Term., October 27, 1998.

Buono v. Giaimis

New York Law Journal, July 2, 1997, p. 33, col. 4, Yks. Cty. Ct., father demands return of $10,000 given to daughter to pay his funeral expenses and burial costs; no anticipatory breach of contract; contract violates Statute of Frauds; conditional gift.

Darden v. Yonkers Motor Corp.

New York Law Journal, August 1, 1997, p. 28, col. 2, Yks. Cty. Ct., Connecticut attorneys admitted to practice in but without an office in New York State file complaint; complaint dismissed because of failure to comply with Judiciary Law 470.

Filpo v. Credit Express Furniture Inc.

New York Law Journal, August 26, 1997, p. 26, col. 4, Yks. Cty. Ct., furniture company violates consumer protection statutes, Personal Property Law 428, 429, Door-To-Door Sales Act, and General Business Law 349, in failing to inform Spanish speaking consumers of three day cancellation period and failing to refund monies after they canceled; overreaching contract clauses found null and void.

Diament v. Kaiser Foundation Health Plan Inc.

New York Law Journal, September 25, 1997, p. 34, col. 1, Yks. Cty. Ct., employees received therapy sessions from health care plan which were terminated because problems deemed not responsive to short-term management; plan must reimburse employees for cost of non-plan therapy health care.

Mathew v. Klinger

New York Law Journal, October 7, 1997, p. 29, col. 3, Yks. Cty. Ct., pet dog swallows chicken bone and dies seven days later; two veterinarians committed malpractice and are held responsible for dog's death; damages of $1,500.00 awarded; aff'd and mod'd, 179 Misc. 2d 609, 686 N.Y.S. 2d 549, App. Term. 1998, reducing damages from $1,500.00 to $528.25.

Kozlowski v. Sears

New York Law Journal, November 6, 1997, p. 27, col. 3, Yks. Cty. Ct., homeowner purchases defective vinyl windows; consumer protection statute; contract rescinded for failure to comply with Personal Property Law 428, 429, Door-To-Door Sales Act; contract clause disclaiming liability for premises damage void.

C.T.V., Inc. v. Curlen

New York Law Journal, December 3, 1997, p. 35, col. 1, Yks. Cty. Ct., consumer purchases " Beat The System Program " of $25,000 worth of certificates and the opportunity to sell the program to other consumers and receives neither certificates nor a refund; violation of General Business Law 359-fff, prohibition of pyramid schemes, and 349, prohibition of misleading and deceptive business practices, and negligent misrepresentation.

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1998:YONKERS CITY COURT, NEW YORK STATE

McBride & McCabe Interiors v. Kantro

New York Law Journal, February 19, 1998, p. 32, col. 3, Yks. Cty. Ct., interior decorators rendered design services without a signed contract; homeowner liable for fees based upon quasi contract, quantum meruit, unjust enrichment and promissory estoppel.

Baker v. Burlington Coat Factory

175 Misc. 2d 951, 673 N.Y.S. 2d 281, 1998, consumer purchases fake fur and returns it two days later because it is shedding and defective; retail store's " no cash refund " policy null and void, U.C.C. 2-314, 2-714 preempt General Business Law 218-a which allows " no cash refund " policies if notice proper; failure to inform consumers of availability of cash refund for defective goods violates General Business Law 349, deceptive business practices. Cited as authority by the New York Court of Appeals in Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 712 N.E. 2d 662, 690 N.Y.S. 2d 495, 498, 1998.

Andersen v. Ryder Truck Rental

New York Law Journal, March 23, 1998, p. 34, col. 1, Yks. Cty. Ct., consumer who waits thirty days for rental truck to be repaired recovers cost of motels and food for thirty days; breach of contract and promissory estoppel found.

Miller v. Corbett

1998 WL 185059, Yks. Cty. Ct. 1998, attorney seeking inquest on damages violated Judiciary Law 470, failing to maintain office in New York State, and Part 136 of Rules of Chief Administrator requiring arbitration of fee disputes in matrimonial actions; sanctions of $250 imposed , mod'd 177 Misc. 2d 266, 676 N.Y.S. 770, 1998, reargument granted; finding of a violation of Judiciary Law 470 and imposition of sanctions vacated.

BNI New York Ltd. v. DeSanto

177 Misc. 2d 9, 675 N.Y.S. 2d 752, 1998, BNI, a business and professional networking organization, seeks to enforce a membership fees note; complaint dismissed and note rescinded on grounds of failure of consideration, misrepresentations and unconscionability; violation of General Business Law 349.

Petrello v. Winks Furniture

New York Law Journal, May 21, 1998, p. 32, col. 3, Yks. Cty. Ct., furniture store misrepresents sofa as covered in Ultrasuede HP and protected by 5 year warranty when sofa actually covered in an inferior fabric; order form altered after purchase; fraudulent misrepresentation; rescission; breach of implied warranty of merchantability; violation of General Business Law 349.

Jerome v. Famby

New York Law Journal, June 3, 1998, p. 30, col. 3, Yks. Cty. Ct., landlord sued tenant three times over same transaction in two different Small Claims Courts; landlord falsely certified that he had not previously sued the tenant; third lawsuit found to be frivolous and brought to harass, intimidate, oppress and annoy tenant; landlord barred from filing any new lawsuits for one year unless receives permission from Judge sitting in small claims court.

Borys v. Scarsdale Ford Inc.

New York Law Journal, June 15, 1998, p. 34, col. 4, Yks. Cty. Ct., consumer demands new car after discovering it was repainted before delivery; dealer must have opportunity to repaint under new car lemon law, General Business Law 198-a, and express warranty; dealer may be liable under General Business Law 396-p(5), new car contract disclosure rules, but Small Claims Court has neither equitable nor monetary jurisdiction to enforce G.B.L. 396-p(5).

Heyward v. Pirrotti

New York Law Journal, August 4, 1998, p. 26, col. 1, Yks. Cty. Ct., consumer hires attorney to pursue wrongful discharge claim; first retainer requires $2000 minimum fee for payment of hourly time charges and expenses; second retainer provides for contingency fee and expenses; two retainers ambiguous and attorney must refund balance of minimum fee after second retainer entered into.

Bridget Griffin-Amiel v. Frank Terris Orchestras

178 Misc. 2d 71, 677 N.Y.S. 2d 908, 1998, bride to be hires orchestra and wedding singer Paul Rich to perform at wedding reception; without prior notice a different wedding singer is substituted; breach of contract; disclaimer void; negligent misrepresentation; violation of General Business Law 349, deceptive and misleading business practices; damages included one half of contract price and $500.00 for embarrassment, humiliation and annoyance. Cited as authority by the New York Court of Appeals in Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 712 N.E. 2d 662, 690 N.Y.S. 2d 495, 498, 1998.

Dellagala v. Brown

178 Misc. 2d 445, 679 N.Y.S. 2d 526, 1998, attorney receives $100,000 certified check from debtor and instead of delivering it to his client-creditor he mails it my regular mail; the check is lost and replaced five months later; attorney liable in malpractice and ordered to pay client five months' worth of lost interest.

Gutterman v. Romano Real Estate

New York Law Journal, October 28, 1998, p. 36, col. 3, Yks. Cty. Ct., real estate broker misrepresents that house with septic tank was connected to sewer system; one year later buyer discovers septic tank when toilet backs up causing in excess of $3,000 in damages; fraudulent and negligent misrepresentation; violation of General Business Law 349.

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1999:YONKERS CITY COURT, NEW YORK STATE

Brown v. Marra

New York Law Journal, March 8, 1999, p. 32, col. 4, Yks. Cty. Ct., motion to (1) transfer Small Claims Court case to Civil Court based upon assertion of counterclaim in excess of $3,000 jurisdictional limit or (2) stay prosecution pending fee dispute arbitration denied as frivolous and not well founded in the law.

Demuro v. Hofstede

New York Law Journal, March 18, 1999, p. 33, col. 4, Yks. Cty. Ct., tenants obtained a decision from Division of Housing and Community Renewal, DHCR, reducing rent; instead of appealing DHCR decision tenant withheld rent and in response to non-payment action sought an additional abatement by claiming a breach of warranty of habitability; Court dismissed defense as tenants were collaterally estopped from raising habitability issues previously adjudicated.

Bank v. La Costa Apartment Corp.

New York Law Journal, March 31, 1999, p. 38, col. 5, Yks. Cty. Ct., winning bidder for co-op obtains refund of deposit after learning of no-pet policy; unjust enrichment; incorporation by reference doctrine; failure to give adequate notice of no-pet policy.

Goodman v. Central Park Auto Wash Inc.

New York Law Journal, April 12, 1999, p. 31, col. 4, Yks. Cty. Ct., cash wash damages bike and roof rack; bailments and negligence; disclaimer not enforced.

Mizra v. National Standard Mortgage Corp.

New York Law Journal, April 28, 1999, p. 31, col. 1, Yks. Cty. Ct., mortgage agreement canceled based upon misrepresentations; motion seeking to stay proceedings and enforce arbitration clause denied; arbitration clause not enforced.

O'Brien v. Exotic Pet Warehouse, Inc.

New York Law Journal, October 5, 1999, p. 35, col. 2, Yks. Cty. Ct., pet owner recovers for loss of baby African Grey Parrot; negligent clipping of wings; negligent misrepresentation and violation of General Business Law Section 349.

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2000:WESTCHESTER COUNTY FAMILY COURT, NEW YORK STATE

D.S. v. C.S.

New York Law Journal, April 20, 2000, p. 34, col. 2, Westchester Family Court. The petitioner mother, having moved from Virginia two months ago, sought sole custody of the parties' two children. The father challenged the court's jurisdiction, claiming that the custody petition should be brought in Virginia since Virginia was the " home state ". The court held that although Virginia was the home state, the federal Parental Kidnaping Prevention Act pre-empted state law considerations by requiring that one of the contestants reside in Virginia at the time of the filing. Jurisdiction in New York was upheld since neither mother nor father resided in Virginia and the " location of substantial evidence " and " significant contacts " supported accepting jurisdiction for the best interests of the children.

B.L. v. M.L.

New York Law Journal, June 23, 2000, p. 33, col. 5, Westchester Family Court. The Petitioner filed a family offense petition claiming that respondent, her ex-husband, committed second-degree assault and first-degree harassment. Respondent moved to dismiss the petition for failure to state a cause of action. Reviewing the alleged conduct of respondent, the court agreed that neither cause of action was sustainable. However, the court sought to encourage a " user friendly " Family Court. It said that the pleadings must be liberally construed and that the standard was whether the allegations sustained any recognized family offense. Petitioner alleged that respondent repeatedly made anonymous phone calls to her home and office and had sent a copy of the divorce papers to a friend. The court found that these allegations supported causes of action for aggravated harassment in the second degree and harassment in the second degree.

F.H. v. M.L.

New York Law Journal, September 14, 2000, p. 25. col. 4, Westchester County Family Court. For six years, the Court was involved in the contentious and abusive relationship between the petitioner father and respondent mother. After the mother moved to Connecticut, she was charged with neglecting their two children. Connecticut's Department of Children and Families removed the children for six and a half months to its care and custody. Consequently, the father filed a petition in Westchester seeking sole custody. Mother moved to dismiss on the ground of lack of jurisdiction or to transfer the petition to the Connecticut court before which a neglect petition was pending. The Court reviewed New York's Uniform Child Custody Jurisdiction Act, Connecticut's Uniform Child Custody Jurisdiction And Enforcement Act and the Parental Kidnaping Prevention Act. In deciding to retain jurisdiction, the Court stressed: the Court's nine prior visitation orders, the six-year relationship between the law guardian and children, that the children lived most of their lives in New York, and that the father had continuously resided in New York.

Matter of J.M.

New York Law Journal, October 3, 2000, p. 31, col. 2, Westchester County Family Court. In a juvenile delinquency petition, it was alleged that the 12 year old respondent had sexual intercourse with his 11 year old cousin. The petition charged respondent with rape (later withdrawn), sexual abuse and consensual sodomy, all of which were denied. The alleged act occurred in July 1999. The matter was referred by the Probation Department to the Westchester County Attorney's Office in October 1999. Nine months later, the county attorney filed this petition. Respondent moved to dismiss the petition on the ground of due process and violation of his right to a speedy trial. The court found that pre indictment/pre petition delays are subject to due process and speedy trial analysis but that the 9 month delay did not prejudice respondent in any way. Also, the delay was reasonable, given obstacles in obtaining the victim's needed statement.

P.I. v. C.D.

New York Law Journal, November 22, 2000, p. 32, col. 1 Westchester County Family Court. The Petitioner telephoned the Respondent wanting to know the whereabouts of their child in common. The Respondent threatened to kill the Petitioner if she tried to " get ( their ) 2 year old daughter back from him ". He also stated that " if I won custody of ( their ) daughter on ( their ) upcoming court date...that he would kill both me and our daughter ". On a motion to dismiss the Petition for a failure to state a Family Offense, the Court dismissed the Petition finding, among other things, that no cause of action was stated for Aggravated Harassment in the Second Degree, PL 240-30(1), because the Respondent did not initiate the telephone call.

A.M. v. M.I.

New York Law Journal, December 28, 2000, p. 28, col. 4, Westchester County Family Court. The Respondent paged the Petitioner who then telephoned the Respondent during which the Respondent threatened the Petitioner by stating that " if he had to get rid of me to see his kids, he will do what he has to do ". After a hearing the Court found that the Respondent had committed the Family Offense of Aggravated Harassment in the Second Degree by using a pager to precipitate the initiation of the telephone call by the Petitioner. In addition, the Court called upon the State Legislature and the Courts to expand the application of the PL 240.30(1) to all telephone communications involving threats of physical violence or death within the context of domestic violence.

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2001: WESTCHESTER COUNTY FAMILY COURT, NEW YORK STATE

H.G. v. COMMISSIONER OF SOCIAL SERVICES

New York Law Journal, April 6, 2001, p. 22, col. 2 Westchester County Family Court. The maternal great-aunt petitioned for overnight visitation with her great-niece, a child placed in foster care at the time of her birth nearly four years ago. Although there was statutory authority giving parents, grandparents and siblings the standing to seek visitation there was no such authority for others, such as great-grandparents, aunts, uncles and former foster parents, to seek visitation. Under the doctrine of equitable estoppel, persons who are neither biological nor adoptive parents can seek visitation if they can show an actual and substantial relationship. Here, although the child went into foster care nearly four years ago, petitioner had no contact with her other than a monthly one-hour supervised visit held at DSS offices commencing in June 2000. Petition dismissed.

MATTER OF J.V

New York Law Journal, May 3, 2001, p. 26, col. 4, Westchester County Family Court. A petition was filed alleging that respondent while acting in concert with others set a blue U.S. postal mailbox on fire causing damage to the mailbox and the mail within. Respondent had admitted, orally and in writing, to a Youth Division Investigator of the Yonkers Police Department that he was involved in the incident. Respondent is now seeking to suppress those statements. Respondent raised two issues. One was whether or not the written statement was made voluntarily, knowingly and intelligently. The other was whether or not respondent was questioned in an appropriately designated juvenile room. The Court found that respondent was properly informed of his rights and that he freely waived them.

J.V. V. J.C.

New York Law Journal, June 25, 2001, p. 32, col. 6, Westchester County Family Court. Petitioner's son, a resident of Westchester County, visited his aunt in Waltham, Mass., and during a disagreement, she threatened to ' shoot him '. A family offense petition was filed in Westchester County and respondent aunt moved to dismiss. The court sua sponte addressed the issue of subject matter jurisdiction. It said that Family Court and Criminal Court had concurrent jurisdiction over Article 8 proceedings and as a consequence, the subject matter jurisdiction of Family Court was the same as that of Criminal Court. Therefore, subject matter jurisdiction was limited to events occurring within New York state. Accordingly, the court dismissed the matter, finding no subject matter jurisdiction and no " compelling " reason to find subject matter jurisdiction since the family offense occurred entirely in Waltham, Mass., and had no direct or residual impact in New York State.

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2003: NEW YORK STATE SUPREME COURT, 9TH JUDICIAL DISTRICT, WHITE PLAINS, NEW YORK

MATTER OF COSCETTE V. TOWN OF WALLKILL

New York Law Journal, February 4, 2003, p. 23, col. 1, ( West. Sup. ); 2003 WL 1700490, 2003 N.Y. Slip. Op. 50624, See New York Slip Opinions at http://www.courts.state.ny.us/reporter/Decisions.htm and New York Official Reports (NY-ORCSU) on Westlaw. Petitioner, Respondent town's former police chief, was dismissed from his position following a disciplinary proceeding, premised upon a federal jury's verdict against him, for alleged acts of misconduct and incompetence. He sought reinstatement arguing, among other things, that the bill of particulars was inadequate and that the gearing officer had failed to make an independent factual finding during the disciplinary hearing. The court vacated petitioner's termination and remanded the matter for a new hearing, ordering the hearing officer to make an independent factual finding. The court ruled that despite petitioner's repeated requests and a prior supreme court order, the town had not provided an adequate bill of particulars. It also ruled that, pursuant to Civil Practice Law and Rules 3018(a), by failing to respond in any manner to the issue of the hearing officer's failure to make an independent factual finding, the town had conceded the issue.

MATTER OF CHRISLEX STAFFING LTD. V. NEW YORK STATE DEPARTMENT OF HEALTH

New York Law Journal, March 20, 2003, p. 24, col. 5 ( West. Sup. ); ___Misc. 2d___, ___ N.Y.S. 2d___( ), 2003 WL 1566605, 2003 NY Slip Op. 23474 ( 2003 ); N.Y. Slip Opinions at http://www.courts.state.ny.us/reporter/Decisions.htm. The County's Dept. Of Social Services (DSS) had requested that petitioner care for the disabled daughter of a former county employee. The DSS represented that Medicaid would reimburse petitioner. The Dept. Of Health (DOH) refused continued payment of petitioner's Medicaid reimbursement claims after it wrongly concluded that the county's health benefits plan provided third-party insurance coverage. After 13 months, the plan's administrator concluded that coverage was not provided. The DOH refused payment of plaintiff's claims as time-barred under 18 New York Code, Rules and Regulations 540.6(a)(3)(1). The court ruled that the DOH was estopped from asserting a defense of untimely filing because petitioner has relied on DSS misrepresentations about Medicaid coverage and the DOH's conclusion as to third party coverage. It also ruled that the DSS should have known of the DOH's incorrect coverage determination.

MATTER OF MCCOMB V. DELFINO

New York Law Journal, April 8, 2003, p. 23, col. 5 ( West. Sup. ). Petitioner City official was suspended on disciplinary charges proffered by respondent mayor pursuant to Civil Service Law 75. Respondent designated a hearing officer (HO) for the disciplinary proceedings. Petitioner challenged the HO's refusal to dismiss the disciplinary hearing as jurisdictionally defective. Respondent claimed that the challenge was premature because no final determination had been made in the disciplinary action. Citing Matter of Essex County v. Zagata, the court rejected immediate appeal, holding than an administrative agency's assertion of jurisdiction did not inflict a ' concrete injury ' for a finding of finality. The court dismissed the challenge, finding the HO had not made a final determination. Noting that under CSL 75(2) an HO may only make recommendations with respect to disciplinary charges, the court ruled that because the HO had not submitted recommendations to the city and no decision had been made on the charges, petitioner had not suffered any injury.

AYDELOTT v. TOWN OF BEDFORD ZONING BOARD OF APPEALS

New York Law Journal, June 25, 2003, p. 21, col. 4 ( West. Sup. ). Petitioner, whose four-acre property includes a home, swimming pool and tennis courts, challenged respondent zoning board of appeals' (ZBA) denial of a variance to expend his kitchen and construct a three-car garage. The ZBA found that at completion of the proposed construction there would be a resulting building coverage of 7.1 percent where 3 percent is allowed and an impervious surface of 11.7 percent where 8 percent is allowed. The court ordered the ZBA to grant the variance, finding that it had failed to fully balance the benefit to petitioner against the detriment to the neighborhood's health, safety and welfare pursuant to Town Law 267-b(3)(b). Noting that the ZBA had concerned itself almost exclusively with whether the requested area variance was substantial, the court determined that the ZBA's consideration of a percentage deviation alone is an inadequate indicator of whether a variance application is substantial.

MATTER OF SIRIGNANO V. SUNDERLAND

New York Law Journal, August 12, 2003, p. 21, col. 2 ( West. Sup. ); 2003 NY Slip Op 23697, __Misc. 2d__, __N.Y.S. 2d__ (2003 ). On July 25, 2003, petitioner political nominee filed a petition challenging respondent county board of elections' July 23, 2003 determination that a challenger's nominating petition was valid. The court denied the petition as untimely, noting that July 10, 2003 was the last date to file a petition with the board. Under Election Law 16-102(2), a proceeding to validate or invalidate a petition must be brought within 14 days after the last date to file a petition with the board. Citing Matter of Eckart v. Edelstein and Matter of Bruno v. Peyser, the court found that the three-day exception to the 14-day filing rule, as codified by a 1992 amendment to 16-102(2), applies to a proceeding to validate a petition found to be invalid rather than one to invalidate a valid petition. The court determined that the appellate division should clarify whether the decision in Rapp v. Wright sets out a new exception to the 14-day filing rule by extending the scope of the three-day extension to petitions that have been declared valid.

MATTER OF JAMIL v. VILLAGE OF SCARSDALE BOARD OF APPEALS

New York Law Journal, October 9, 2003, p. 20, col. 3 ( West. Sup. ). Homeowners challenged approval of an assisted living facility's construction. The building inspector's finding that the facility constituted a permitted use subject to a special permit were memorialized in the village planner's staff notes circulated at a May 27, 1998 pre-application conference. On April 24, 2002, the planning board decided that the facility qualified as a special permit use under the village code's definition of hospital, sanitarium or nursing home. Under Village Law 7-712-a(5) petitioners had 60 days from the filing of the building inspector's determination to appeal. The court dismissed their petition as untimely, finding that the inspector's determination was filed at the March 27 1998 submission of the village planner's staff notes and on April 24, 2002 when the planning board accepted a final environmental impact statement detailing the inspector's determinations. The court also ruled that the appeal was barred by laches.

2004: NEW YORK STATE SUPREME COURT, 9TH JUDICIAL DISTRICT, WHITE PLAINS, NEW YORK

MATTER OF ROSE MOUNT VERNON CORP. V. THE ASSESSOR OF THE CITY OF MOUNT VERNON

2003 NY Slip Op 51530(U) ( West. Sup. 2003 ), New York Law Journal, January 28, 2004, p.___, col.___ ( West. Sup. 2004 ).

MATTER OF NEXTEL OF NEW YORK, INC. V. ASSESSOR OF THE VILLAGE OF SPRING VALLEY

2004 NY Slip Op________ ( West. Sup. 2004 ), New York Law Journal, February 6, 2004, p. 20, col. 3 ( West. Sup. 2004 ). The Petitioner, Nextel of New York, challenged the assessment of its telecommunications equipment by the Assessor of the Village of Spring Valley for 2001, 2002 and 2003 on the grounds that the equipment [ antennae, coaxial cables and communications shed ] was personal property and not taxable as real property. The Court held that Nextel's telecommunications equipment was taxable as real property pursuant to R.P.T.L 102(12)(I) or as common law fixtures. In addition the Court held that the Petitions must be dismissed for failing to submit an appraisal and rebut the presumption of validity by submitting an appraisal and expert testimony at trial.

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Thomas A. Dickerson is a Westchester County Court Judge and author of Travel Law, Law Journal Press, New York, 1981-2000 ( updated biannually ).

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