New York Law Review

Tag: 2013

  • Galetta v. Galetta, 21 N.Y.3d 186 (2013): Enforceability of Prenuptial Agreements and Defective Acknowledgments

    Galetta v. Galetta, 21 N.Y.3d 186 (2013)

    A prenuptial agreement must be acknowledged in the manner required to entitle a deed to be recorded, and a defective acknowledgment, where a core component is missing, cannot be cured by a later affidavit if the affidavit does not provide sufficient detail of the notary’s customary practices.

    Summary

    In a divorce action, Michelle Galetta sought to invalidate a prenuptial agreement due to a defective acknowledgment of Gary Galetta’s signature. The New York Court of Appeals held that the acknowledgment was indeed defective because it omitted language confirming the notary’s verification of the signer’s identity. Furthermore, the court found that the notary’s affidavit, submitted later, was insufficient to cure the defect as it lacked specific details about the notary’s customary practices. The Court emphasized that prenuptial agreements must adhere strictly to the formality required for recorded deeds, ensuring deliberation and authentication of the signatures. As a result, the prenuptial agreement was deemed unenforceable.

    Facts

    Michelle and Gary Galetta signed a prenuptial agreement a week before their wedding in 1997. Each party signed separately, with different notaries public witnessing their signatures. The agreement stipulated that their separate properties would remain separate and neither would seek maintenance from the other. Gary’s certificate of acknowledgment omitted a crucial phrase indicating the notary confirmed Gary’s identity. In 2010, Gary filed for divorce, and Michelle sought to invalidate the prenuptial agreement based on the defective acknowledgment.

    Procedural History

    The Supreme Court denied Michelle’s motion for summary judgment, finding substantial compliance with the Real Property Law. The Appellate Division affirmed, holding the acknowledgment was defective but could be cured, finding the notary’s affidavit raised a triable issue of fact. A dissenting opinion argued the defect could not be cured. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the certificate of acknowledgment accompanying the husband’s signature was defective.

    2. Whether a defective certificate of acknowledgment can be cured after the fact, and if so, whether the notary public’s affidavit was sufficient to raise a question of fact precluding summary judgment.

    Holding

    1. Yes, because the certificate of acknowledgment omitted language indicating the notary public knew or had ascertained the signer was the person described in the prenuptial agreement.

    2. No, the affidavit was insufficient because it lacked specific details about the notary’s customary practices for verifying identity, even assuming a defect can be cured, therefore it did not raise a triable question of fact.

    Court’s Reasoning

    The Court reasoned that Domestic Relations Law § 236 (B) (3) requires prenuptial agreements to be executed with the same formality as recorded deeds, as per Real Property Law § 291. This formality serves to authenticate the signer’s identity and impose deliberation in signing, as established in Matisoff v. Dobi, 90 N.Y.2d 127 (1997). Real Property Law §§ 292, 303, and 306, read together, mandate that the notary confirm the signer’s identity and certify that confirmation. The court emphasized that “acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person.”

    The Court distinguished Weinstein v. Weinstein, 36 A.D.3d 797 (2d Dept 2007), noting that the case involved a deviation in form, not substance, unlike the present case where a core component of a valid acknowledgment was missing. While the Court acknowledged the possibility of curing a defective acknowledgment under certain circumstances, it found the notary’s affidavit insufficient. The affidavit lacked specific details about the notary’s routine procedure for verifying identity. “Custom and practice evidence draws its probative value from the repetition and unvarying uniformity of the procedure…”. Because the notary only generally stated that it was his practice to “ask and confirm” the identity of the signer, it was too conclusory to establish a triable issue of fact.

  • People v. Lee, 21 N.Y.3d 175 (2013): Discretion in Appointing Court Interpreters

    21 N.Y.3d 175 (2013)

    A trial court has discretion to determine whether a court interpreter should be removed for bias, and that discretion is not abused when the court adequately questions the interpreter and finds no bias.

    Summary

    Thomas Lee was convicted of burglary and grand larceny. He appealed, arguing that the trial court erred in not replacing the court-appointed interpreter after defense counsel raised concerns about the interpreter’s acquaintance with the complainants. The New York Court of Appeals affirmed the conviction, holding that the trial court acted within its discretion. The court reasoned that the trial court adequately questioned the interpreter regarding potential bias and found no reason to believe the interpreter could not perform his duties impartially, especially since the interpreter was a state employee bound by an oath.

    Facts

    Thomas Lee and a co-defendant were charged with stealing property from the apartment of a husband and wife. At trial, the wife, who spoke Cantonese, required a court interpreter. The court-appointed interpreter informed the court that he was a “friend” of the complainant husband and had met the wife. The interpreter also knew the husband had previously served federal time but denied any discomfort in translating for the wife and claimed no knowledge of the case facts. Defense counsel sought to remove the interpreter due to the relationship and the husband’s alleged “intimidating violent nature.”

    Procedural History

    The trial court denied the request to replace the interpreter, and the defendant was convicted. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court abused its discretion by refusing defense counsel’s request to replace a state-employed court interpreter based on the interpreter’s acquaintance with the complainants.

    Holding

    No, because the trial court adequately questioned the interpreter about potential bias and reasonably concluded that the interpreter could perform his duties without prejudice.

    Court’s Reasoning

    The Court of Appeals held that trial courts have discretion in determining whether an interpreter is necessary, qualified, and biased. The court emphasized that it is the trial court that is “in the best position to determine whether an interpreter, once appointed, is biased in favor of a party or witness, thereby necessitating removal and replacement.” The court found that the trial court acted appropriately by questioning the interpreter about his relationship with the complainants and his knowledge of the case. The court also considered that the interpreter was a state employee who had taken an oath to faithfully discharge his duties. The court distinguished this case from Matter of James L., where the trial court failed to inquire into the bias and qualifications of an ad hoc interpreter. Here, the interpreter, as a state employee, could be presumed to understand his ethical obligations. The court stated, “As a state employee who had taken an oath to interpret, it can be presumed that the interpreter knew his ethical/professional obligations to translate the testimony verbatim. On the facts of this case, the court could have reasonably found that the danger the interpreter would distort complainant wife’s testimony was remote, particularly because he possessed no knowledge concerning the facts of the case.”

  • Schlessinger v. Valspar Corp., 21 N.Y.3d 168 (2013): Enforceability of Contractual Provisions Violating General Business Law

    21 N.Y.3d 168 (2013)

    Contractual provisions that run contrary to General Business Law § 395-a are not automatically void as against public policy, and a violation of § 395-a alone does not create a cause of action under § 349.

    Summary

    This case addresses whether a contractual provision violating New York General Business Law § 395-a is void and whether such a violation gives rise to a cause of action under § 349, which prohibits deceptive business practices. Plaintiffs purchased furniture protection plans that contained a “store closure provision,” allowing the insurer to refund the plan’s price if the store closed. After the store closed, plaintiffs argued this provision violated § 395-a, which prohibits terminating maintenance agreements. The Court of Appeals held that § 395-a does not automatically invalidate conflicting contract clauses and that a violation alone does not establish a § 349 claim, thus enforcement is assigned exclusively to government officials.

    Facts

    Plaintiffs Schlessinger and Pianko purchased furniture and a “Guardsman Elite 5 Year Furniture Protection Plan” from Fortunoff. The plan, provided by Valspar Corporation, covered furniture damage. It included a “store closure provision” stipulating that if the purchasing store closed, Guardsman would refund the plan’s purchase price. Fortunoff subsequently went bankrupt and closed the store where the plaintiffs purchased their furniture. Pianko filed a claim for damage to her furniture and received a refund for the plan ($100) based on the store closure provision. Schlessinger did not file a claim.

    Procedural History

    Plaintiffs filed a diversity action in the U.S. District Court for the Eastern District of New York, alleging breach of contract under General Business Law § 395-a and deceptive practices under § 349. The District Court dismissed the complaint, holding that a breach-of-contract claim cannot arise solely from conduct prohibited by § 395-a, nor can a § 349 claim be based solely on a violation of § 395-a. The plaintiffs appealed to the Second Circuit, which certified two questions to the New York Court of Appeals.

    Issue(s)

    1. May parties seek to have contractual provisions that run contrary to General Business Law § 395-a declared void as against public policy?

    2. May plaintiffs bring suit pursuant to § 349 on the theory that defendants deceived them by including a contractual provision that violates § 395-a and later enforcing this agreement?

    Holding

    1. No, because the legislature assigned enforcement exclusively to government officials and did not include language invalidating inconsistent contract provisions in § 395-a.

    2. No, because a violation of § 395-a alone does not constitute a deceptive act or practice under § 349.

    Court’s Reasoning

    The Court reasoned that General Business Law § 395-a does not explicitly provide a private right of action; instead, enforcement is assigned to government officials. The legislature did not include language invalidating inconsistent contract provisions, unlike other sections of the General Business Law. Citing Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, the Court refused to create a “backdoor private cause of action” to enforce a statute where no such right exists.

    Regarding the § 349 claim, the Court stated that the statute prohibits conduct that tends to deceive consumers. It rejected the argument that merely acting unlawfully and not admitting the transgression constitutes deception. Such an interpretation would stretch the statute too far. The Court distinguished Llanos v. Shell Oil Co., Lonner v. Simon Prop. Group, Inc., and Goldman v. Simon Prop. Group, Inc., noting that printing contract clauses in small type (as in those cases) may tend to deceive consumers, whereas including a termination provision in a maintenance agreement does not. As the court noted, “[Section 349] cannot fairly be understood to mean that everyone who acts unlawfully, and does not admit the transgression, is being ‘deceptive.’ Such an interpretation would stretch the statute beyond its natural bounds to cover virtually all misconduct by businesses that deal with consumers.” Therefore, a violation of § 395-a, without more, does not give rise to a claim under § 349.

  • People v. Prescott, 22 N.Y.3d 926 (2013): Unwaived Conflicts of Interest in Simultaneous Representation

    22 N.Y.3d 926 (2013)

    An attorney’s simultaneous representation of a criminal defendant and a co-defendant or prosecution witness whose interests actually conflict constitutes ineffective assistance of counsel unless the conflict is validly waived.

    Summary

    Tyrone Prescott appealed his gang assault conviction, arguing ineffective assistance of counsel because his appellate lawyer also represented Prescott’s co-defendant, Calvin Martin, at Martin’s sentencing. Martin testified against Prescott at trial. At Martin’s sentencing, the same lawyer argued for leniency based on Martin’s cooperation with the prosecution and testimony against Prescott. The New York Court of Appeals held that this simultaneous representation created an actual, unwaived conflict of interest, entitling Prescott to a new appeal. The court emphasized that a lawyer cannot provide undivided loyalty when representing clients with conflicting interests, and failure to disclose the conflict prevents a valid waiver.

    Facts

    Tyrone Prescott was convicted of gang assault.

    Prescott retained counsel to represent him on appeal.

    Unbeknownst to Prescott, this same counsel represented Prescott’s co-defendant, Calvin Martin, at Martin’s sentencing hearing.

    Martin had served as a prosecution witness and testified against Prescott at trial.

    At Martin’s sentencing hearing, counsel argued for leniency based on Martin’s cooperation with the prosecution and his testimony adverse to Prescott.

    On Prescott’s appeal, counsel sought to discredit Martin’s testimony, arguing it was the word of an admitted liar.

    Counsel never informed Prescott that he also represented Martin, nor did he provide the transcript of Martin’s sentencing hearing despite Prescott’s inquiry.

    Procedural History

    The Appellate Division affirmed Prescott’s conviction.

    Prescott moved for a writ of error coram nobis, alleging ineffective assistance of counsel due to the conflict of interest.

    The Appellate Division denied the writ.

    The New York Court of Appeals granted Prescott leave to appeal.

    Issue(s)

    Whether an attorney’s simultaneous representation of a criminal defendant on appeal and that defendant’s co-defendant/prosecution witness at sentencing, where the attorney argues for leniency for the co-defendant based on his testimony against the defendant, constitutes an unwaived actual conflict of interest, thereby violating the defendant’s right to effective assistance of counsel.

    Holding

    Yes, because counsel’s conflicting loyalties prevented him from providing Prescott with effective assistance, and because Prescott did not waive the conflict.

    Court’s Reasoning

    The Court of Appeals emphasized that an attorney cannot simultaneously represent clients with conflicting interests without a valid waiver. “Simultaneous representation of two clients with conflicting interests means the lawyer ‘cannot give either client undivided loyalty’.” The court noted counsel argued for leniency for Martin based on testimony directly adverse to Prescott, while simultaneously preparing to challenge that testimony on Prescott’s appeal. This created a direct conflict. The court rejected the argument that the conflict was inconsequential because counsel’s representation of Martin ended before Prescott’s appeal was perfected, stating, “[C]onflicts arise even in cases of successive representation because ‘[e]ven though a representation has ended, a lawyer has continuing professional obligations to a former client, including the duty to maintain that client’s confidences and secrets…which may potentially create a conflict between the former client and a present client.’” The court found that because Prescott was not informed of the conflict and did not waive it, the writ of error coram nobis should be granted. The court cited People v. Alicea, 61 N.Y.2d 23, 29 (1983) and People v. Ortiz, 76 N.Y.2d 652, 656 (1990).

  • Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Company, 21 N.Y.3d 143 (2013): Determining ‘Occurrence’ in Sexual Abuse Insurance Claims

    21 N.Y.3d 143 (2013)

    When an insurance policy does not define ‘occurrence’ to aggregate separate incidents, the ‘unfortunate event’ test applies, requiring a close temporal and spatial relationship and a causal continuum to consider incidents as a single occurrence.

    Summary

    This case concerns an insurance coverage dispute between the Roman Catholic Diocese of Brooklyn and National Union Insurance Company regarding liability for a settlement paid to a minor who was sexually abused by a priest. The central issue is whether the multiple instances of abuse constitute a single ‘occurrence’ or multiple occurrences under the insurance policies. The New York Court of Appeals held that the incidents constituted multiple occurrences because they lacked a close temporal and spatial relationship and were not part of the same causal continuum, necessitating pro rata allocation of the settlement and multiple applications of the self-insured retention (SIR).

    Facts

    A minor, Alexandra L., was sexually abused by a priest of the Diocese on several occasions from August 1996 to May 2002. The abuse occurred in various locations, including the church rectory, the priest’s vehicle, and the minor’s home. The Diocese settled a civil action brought by the minor for $2 million plus additional consideration. National Union provided primary insurance to the Diocese under three consecutive one-year policies from August 31, 1995, to August 31, 1998. These policies had a $750,000 liability limit and a $250,000 self-insured retention (SIR) per occurrence.

    Procedural History

    The Diocese sought coverage under National Union’s policies. National Union disclaimed coverage based on exclusionary provisions and asserted that multiple SIRs applied. The Diocese then sought a declaratory judgment. The Supreme Court initially ruled against National Union, finding that they failed to timely disclaim coverage and considered the abuse a single occurrence. The Appellate Division reversed, holding that the acts were multiple occurrences, subject to pro rata allocation and multiple SIRs. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether National Union waived its right to assert that multiple SIRs apply and that the incidents were multiple occurrences by failing to timely disclaim on those grounds under Insurance Law § 3420(d)?
    2. Whether the multiple instances of sexual abuse constitute a single ‘occurrence’ or multiple occurrences under the terms of the insurance policies?
    3. Whether the liability should be allocated jointly and severally or on a pro rata basis among the implicated policies?

    Holding

    1. No, because the arguments regarding the SIR and allocation are limitations on liability, not disclaimers of coverage, and thus not subject to the notice requirements of Insurance Law § 3420(d).
    2. Multiple occurrences, because the incidents lacked a close temporal and spatial relationship and were not part of a single causal continuum.
    3. Pro rata, because the policies cover bodily injury that occurs during the policy period, and the incidents of abuse could not be precisely tied to specific policy periods.

    Court’s Reasoning

    The Court of Appeals first addressed the timeliness of National Union’s defenses. It held that Insurance Law § 3420(d) applies to disclaimers of coverage, not to limitations on liability like the SIR. Therefore, National Union did not waive its arguments regarding the SIR and allocation. On the merits, the Court applied the ‘unfortunate event’ test, established in Arthur A. Johnson Corp. v. Indemnity Ins. Co. of N. Am., to determine whether the incidents were a single or multiple occurrences. The Court emphasized that the policies did not define ‘occurrence’ to aggregate incidents. Applying the ‘unfortunate event’ test, the Court found that the sexual abuse incidents spanning six years and multiple locations lacked the necessary temporal and spatial closeness. The Court further reasoned that the incidents were not part of a single causal continuum, distinguishing the case from Hartford Acc. & Indem. Co. v. Wesolowski, where a single car crash resulted in multiple impacts in rapid succession. The Court stated, “cause should not be conflated with the incident.” With respect to allocation, the court determined a pro rata allocation was appropriate because “Plainly, the policy’s coverage is limited only to injury that occurs within the finite one-year coverage period of the policy,” aligning with the policy language and Consolidated Edison Co. of N.Y. v. Allstate Ins. Co. ruling.

  • Bizio v. Dorsey, 21 N.Y.3d 95 (2013): State’s Right to Force-Feed Inmate on Hunger Strike

    Bizio v. Dorsey, 21 N.Y.3d 95 (2013)

    When an inmate’s prolonged hunger strike creates a substantial risk of death or serious permanent injury, the state’s interest in preserving life and maintaining institutional order outweighs the inmate’s qualified right to refuse medical treatment.

    Summary

    Leroy Dorsey, a state inmate, engaged in a hunger strike to obtain a transfer and highlight alleged mistreatment. When his health deteriorated, the Department of Corrections and Community Supervision (DOCCS) sought a court order to force-feed him via a nasogastric tube. The New York Court of Appeals held that the state’s interest in preserving life and preventing institutional instability outweighed Dorsey’s right to refuse medical treatment, justifying the forced feeding. The Court emphasized that Dorsey’s actions created the life-threatening condition, distinguishing it from cases involving pre-existing illnesses or injuries.

    Facts

    Leroy Dorsey, an inmate, began a hunger strike at Great Meadow Correctional Facility to secure a transfer and draw attention to claims of abuse.
    Dorsey had previously engaged in hunger strikes with similar motivations.
    Medical staff repeatedly warned Dorsey that his refusal to eat was causing potentially irreversible organ damage and would lead to death.
    Dorsey only ingested small amounts of liquids, insufficient to sustain his health.
    After a month, Dorsey had lost 11.6% of his body weight.

    Procedural History

    DOCCS petitioned the court for an order permitting medical staff to insert a nasogastric tube to provide nutrition and hydration.
    Supreme Court granted DOCCS’ application, allowing force-feeding unless Dorsey consumed a nutritional supplement and solid food voluntarily.
    Dorsey resumed eating but appealed the order.
    The Appellate Division deemed the case moot because the hunger strike had ceased but addressed the core issue of the State’s right to force-feed, ruling in favor of DOCCS.
    The New York Court of Appeals granted Dorsey leave to appeal.

    Issue(s)

    1. Whether the inmate’s claim that the force-feeding order violated his constitutional right to refuse medical treatment was preserved for review.
    2. Whether the State had the right to secure a force-feeding order when an inmate, not intending to die, was engaging in a hunger strike to bring attention to grievances and obtain a transfer.

    Holding

    1. Yes, because it was clear from his posture that he viewed the insertion of a nasogastric feeding tube as an unconstitutional invasion of his bodily integrity.
    2. Yes, because when “an inmate’s refusal to eat has placed that inmate at risk of serious injury and death . . . the State’s interest in protecting the health and welfare of persons in its custody outweighs an individual inmate’s right to make personal choices about what nourishment to accept” (91 AD3d at 1053).

    Court’s Reasoning

    The Court addressed the preservation of the constitutional claim, noting DOCCS initiated the proceedings, relying on Matter of Von Holden v Chapman, which involved similar constitutional objections. The Court found that despite Dorsey’s initial reference to the Eighth Amendment, the hearing court understood the argument as based on the right to avoid unwanted medical intervention, given DOCCS’s reliance on Von Holden.
    The Court emphasized the State’s interest in preserving life, preventing suicide, and maintaining order within correctional facilities, especially when an inmate’s actions create a life-threatening condition.
    Distinguishing from Rivers v Katz and Matter of Fosmire v Nicoleau, the Court highlighted that Dorsey’s condition was self-inflicted, triggering the State’s interest in preventing suicide. The Court stated, “Whatever his purported intent, by refusing to eat for a prolonged period of time despite repeated warnings concerning the imminent physiological damage that behavior was causing, Dorsey knowingly inflicted injury on himself that, if continued, would result in his death.”
    The Court applied the Turner v Safley standard, which states that prison regulations impinging on constitutional rights are valid if reasonably related to legitimate penological interests. The Court determined that DOCCS’s actions were reasonably related to preserving life, preventing suicide, and maintaining institutional order, all legitimate penological objectives.
    The Court noted that Dorsey’s claim that he sought a transfer and brought attention to alleged mistreatment by DOCCS undermined his interest in continuing the hunger strike, as he had other available means to pursue those objectives. His stated intent did not negate the risks associated with his self-inflicted starvation.

  • Verizon New England, Inc. v. Transcom Enhanced Services, Inc., 21 N.Y.3d 67 (2013): Enforceability of Restraining Notice on At-Will Prepayment Agreements

    Verizon New England, Inc. v. Transcom Enhanced Services, Inc., 21 N.Y.3d 67 (2013)

    A restraining notice under CPLR 5222(b) is unenforceable against an at-will, prepayment service agreement that lacks a binding obligation for future services or dealings because such an agreement does not create a property interest or debt subject to restraint.

    Summary

    Verizon sought to enforce a judgment against Global NAPs, Inc. (GNAPs) by serving a restraining notice on Transcom, a company doing business with GNAPs. The notice aimed to prevent Transcom from transferring any property or debt owed to GNAPs. Transcom had an agreement with GNAPs for telephone switch services, but it prepaid for these services on a weekly basis and had no obligation to continue the arrangement. Verizon argued that the ongoing relationship created a property interest subject to the restraining notice. The Court of Appeals held that because the agreement was at-will and prepaid, with no guarantee of future services or payments, it did not create an attachable property interest or debt, rendering the restraining notice unenforceable.

    Facts

    Verizon obtained a $57 million judgment against GNAPs. In an effort to collect on the judgment, Verizon served a restraining notice and information subpoena on Transcom, a company that had a service agreement with GNAPs. The original agreement between Transcom and GNAPs, dated 2003, stipulated a monthly payment schedule. However, Transcom and GNAPs subsequently modified the agreement to a week-to-week arrangement where Transcom prepaid for services. Transcom could decide weekly whether to continue using GNAPs’ services, and GNAPs could also terminate the agreement at any time.

    Procedural History

    Verizon commenced a special proceeding seeking a turnover of property and debts from Transcom, alleging that Transcom violated the restraining notice by making payments to GNAPs. Supreme Court denied the turnover and dismissed the petition, finding no property or debt subject to the restraining order. The Appellate Division affirmed, holding that Transcom owed no debt to GNAPs and possessed no property of GNAPs. Verizon appealed to the Court of Appeals.

    Issue(s)

    Whether an at-will, prepayment service agreement, lacking any obligation for continued services or future dealings, constitutes a property interest or debt subject to a CPLR 5222 (b) restraining notice.

    Holding

    No, because the at-will, prepayment service agreement, which lacks any obligation to continue services or a commitment to engage in future dealings, does not create a property interest or debt subject to a CPLR 5222 (b) restraining notice.

    Court’s Reasoning

    The Court of Appeals distinguished this case from ABKCO Indus. v Apple Films, 39 NY2d 670 (1976), where a licensing agreement created an attachable property interest because it obligated the third party to pay the debtor a percentage of profits. In contrast, the agreement between Transcom and GNAPs was terminable at will by either party, and Transcom prepaid for services weekly with no obligation to continue the arrangement. The Court emphasized that “each week, Transcom had no obligation to pay GNAPs. Accordingly, there was no debt, and no obligation ‘certain to become due’” (citing Glassman v Hyder, 23 NY2d 354, 359 [1968]). The Court rejected Verizon’s argument that Transcom’s continued business relationship with GNAPs created an expectation of future revenue, stating that such an expectation was too contingent and speculative to create a property interest. The court affirmed the Appellate Division’s finding that Transcom neither owed any debt to nor possessed any property of GNAPs subject to a restraining notice. The voluntary payments in this case are distinguishable from ABKCO where the potential for future obligatory payments provided some real basis for a property interest. “Therefore, unlike ABKCO, there is no restrainable interest akin to the ‘collection of individual rights which, in certain combinations, constitute property’ (United States v Craft, 535 US 274, 278 [2002]).”

  • Matter of L.H. v. P.M., 21 N.Y.3d 88 (2013): Incarceration and Visitation Rights

    L.H. v. P.M., 21 N.Y.3d 88 (2013)

    An incarcerated parent does not automatically forfeit their right to visitation; there is a rebuttable presumption that visitation is in the child’s best interest unless it is shown by a preponderance of the evidence that visitation would be harmful to the child.

    Summary

    This case addresses whether an incarcerated parent has a right to visitation with their child. The father, an inmate, sought visitation with his child after the mother refused to bring the child to the prison. The Family Court granted the father visitation, and the Appellate Division affirmed. The New York Court of Appeals affirmed, holding that incarceration alone does not make a visitation order inappropriate. Instead, there is a rebuttable presumption that visitation is in the child’s best interest, which can only be overcome by demonstrating that visitation would be harmful to the child. The court clarified that the standard for rebuttal is a preponderance of the evidence, not “substantial proof.”

    Facts

    The petitioner, an inmate in New York, acknowledged paternity of a child before his imprisonment.

    The respondent mother refused to bring the child to the prison for visitation.

    The father commenced a Family Court Act proceeding seeking visitation.

    At the time of the hearing, the child was three years old.

    Procedural History

    Family Court granted the father’s petition, awarding periodic four-hour visits at the prison.

    The Appellate Division affirmed, finding a sound and substantial basis in the record to support the Family Court’s determination.

    The mother appealed to the New York Court of Appeals.

    Issue(s)

    Whether the lower courts employed the correct legal standard in reviewing the petition for visitation, specifically regarding the presumption in favor of visitation for non-custodial parents, including incarcerated parents.

    Whether there was a sound and substantial basis in the testimony for finding that visitation was in the child’s best interests.

    Whether the Appellate Division erred in failing to consider the impact of the father’s move from one prison to another.

    Holding

    Yes, because New York law presumes visitation with a non-custodial parent to be in the child’s best interest, and incarceration alone does not negate that presumption; it can only be rebutted by showing that visitation would be harmful to the child by a preponderance of the evidence.

    Yes, because the factual findings underpinning the lower courts’ best interests determinations were supported by evidence in the record.

    No, because the Appellate Division correctly ruled that the issue of the father’s move from one prison to another should have been brought to the attention of Family Court via a modification petition.

    Court’s Reasoning

    The Court of Appeals affirmed the lower courts’ rulings, emphasizing the presumption in favor of visitation for non-custodial parents, even when incarcerated. The court clarified that this presumption is not absolute and can be rebutted if visitation is shown to be harmful to the child. The court differentiated this case from Matter of Tropea v. Tropea, explaining that Tropea rejected mechanical analyses in relocation cases but did not eliminate the possibility of relying on presumptions. The court stated, “A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation.”

    The Court rejected the argument that “substantial proof” is required to rebut the presumption, holding that a “preponderance of the evidence” is the correct standard.

    The Court found support in the record for the lower courts’ findings that visitation was in the child’s best interest, noting that travel to and from the prison would not harm the child and that the father had attempted to maintain a relationship with the child. The court lacks the power to review affirmed findings of fact if supported by evidence.

    Finally, the Court held that the father’s move to a different prison should be addressed through a modification petition in Family Court, not raised for the first time on appeal. “That issue should not have been raised in the first instance for determination by an appellate court.”

  • Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013): Limits on Turnover Orders Against Banks

    Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013)

    To issue a post-judgment turnover order under CPLR 5225(b) against a banking entity, that entity must have actual possession or custody of the assets sought, not merely constructive possession through a subsidiary.

    Summary

    The Commonwealth sought a turnover order against CIBC, a Canadian bank with a New York branch, arguing it controlled assets held by its subsidiary, CFIB, in the Cayman Islands. The Commonwealth asserted CIBC’s 92% ownership and governance structure gave it the practical ability to order CFIB to turn over the Millards’ funds. CIBC argued CFIB was a separate entity and it lacked access to CFIB’s account information. The Second Circuit certified to the New York Court of Appeals the question of whether a turnover order can be issued to an entity without actual possession, but whose subsidiary might have possession. The Court of Appeals held that CPLR 5225(b) requires actual possession or custody by the entity against whom the order is sought.

    Facts

    The Commonwealth obtained tax judgments against the Millards in the Northern Mariana Islands in 1994.

    The Millards moved from the Commonwealth before the judgments could be enforced.

    In 2011, the Commonwealth registered the judgments in the Southern District of New York and sought a turnover order against CIBC, claiming the Millards had accounts in CIBC’s subsidiaries, CFIB, in the Cayman Islands.

    The Commonwealth argued CIBC’s control over CFIB allowed it to compel the turnover of the Millards’ assets.

    CIBC countered that CFIB was an independent entity and CIBC lacked access to its account information.

    Procedural History

    The District Court denied the Commonwealth’s motion for a turnover order, but maintained a restraining order on CIBC related to the Millards’ accounts.

    The Second Circuit appealed to the New York Court of Appeals the question of whether a turnover order can be issued to an entity without actual possession.

    The New York Court of Appeals accepted the certified questions.

    Issue(s)

    Whether a court may issue a turnover order under N.Y. C.P.L.R. § 5225(b) to an entity that does not have actual possession or custody of a debtor’s assets, but whose subsidiary might have possession or custody of such assets?

    Holding

    No, because CPLR 5225(b) requires the entity against whom the turnover order is sought to have actual possession or custody of the assets; constructive possession through a subsidiary is insufficient.

    Court’s Reasoning

    The Court’s reasoning hinged on the plain language of CPLR 5225(b), which refers only to “possession or custody,” and not “control.” The Court stated, “The plain language of section 5225 (b) refers only to ‘possession or custody,’ excluding any reference to ‘control.’ The absence of this word is meaningful and intentional.” The court emphasized the legislative intent to exclude the concept of “control,” noting that prior statutes included “control,” but the legislature intentionally removed it when enacting CPLR 5225(b). The Court reasoned that if the legislature intended to include “control,” it would have explicitly done so, as it has in other CPLR provisions (e.g., CPLR 3111 regarding discovery). The court distinguished the standard for documentary discovery, where “possession, custody, or control” has been interpreted to include constructive possession, from the narrower “possession or custody” standard applicable to the disposition of property, such as in CPLR 5225(b). The court reasoned that the legislature has applied a higher standard to ensure the proper disposition of property. The Court also clarified that its prior decision in Koehler v. Bank of Bermuda Ltd. did not alter the meaning of “possession or custody,” but only emphasized that personal jurisdiction over the garnishee is essential for a turnover order. The court stated, “Koehler does not interpret the meaning of the phrase ‘possession or custody,’ and is only significant in holding that personal jurisdiction is the linchpin of authority under section 5225 (b).” The court concluded that compelling a garnishee to direct an entity not subject to the state’s jurisdiction to deliver assets held in a foreign jurisdiction would be an unwarranted expansion of CPLR 5225(b).

  • People v. Monk, 21 N.Y.3d 27 (2013): Duty to Inform Defendant of Reincarceration Potential for Post-Release Supervision Violation

    People v. Monk, 21 N.Y.3d 27 (2013)

    A trial court is not required to advise a defendant during a plea agreement that a violation of post-release supervision could result in reincarceration because the potential for reincarceration is considered a collateral, not a direct, consequence of the plea.

    Summary

    Defendant Monk pleaded guilty to robbery and was sentenced to a prison term followed by post-release supervision. He was not informed during the plea process that violating the terms of his post-release supervision could result in additional imprisonment. On appeal, he argued that his plea was not knowing and voluntary because he was unaware of this potential consequence. The New York Court of Appeals held that a trial court does not have a constitutional duty to inform a defendant that violating post-release supervision could lead to further incarceration, as it is a collateral consequence, not a core component of the sentence.

    Facts

    Defendant pleaded guilty to robbery in the second degree. At the time of the plea, the trial court advised the defendant of the prison sentence and the mandatory period of post-release supervision. The court did not inform the defendant that a violation of the conditions of his post-release supervision could result in reincarceration.

    Procedural History

    The defendant appealed his conviction, arguing that his guilty plea was not knowing, intelligent, and voluntary because he was not informed of the potential for reincarceration for violating post-release supervision. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether a trial court has a constitutional duty to advise a defendant, prior to accepting a guilty plea, that a violation of the conditions of post-release supervision could result in reincarceration.

    Holding

    No, because the possibility of reincarceration for violating post-release supervision is a collateral consequence of the plea, not a direct consequence that the court is constitutionally required to disclose.

    Court’s Reasoning

    The Court of Appeals reasoned that the trial court has a constitutional duty to ensure that a defendant understands what the plea connotes and its consequences. However, this duty extends only to the direct consequences of the plea, which are considered the “core components” of the sentence. The Court distinguished direct consequences from collateral consequences, which are specific to the individual defendant and generally outside the control of the court.

    The Court found that the potential for reincarceration due to a violation of post-release supervision is a collateral consequence because it depends on the defendant’s future actions and is subject to a separate hearing and determination by the Parole Board. The court emphasized that “the possible reincarceration of defendant as a result of a violation of the conditions of postrelease supervision is not a ‘core component[ ]’ of the sentence imposed on the defendant by the judge to fulfill the bargain struck by the parties.” Therefore, the trial court was under no obligation to advise the defendant of this possibility.

    The dissent argued that the potential extent of imprisonment under the agreed-upon plea is central to the sentence and that the defendant should be informed that the statutory allocation between incarceration and post-release supervision may change in a direction adverse to the defendant. The dissent cited People v. Catu, 4 N.Y.3d 242 (2005), asserting that the trial court must advise a defendant of the direct consequences of the plea.