Representative Cases With Appellate Court Opinions

Below are excerpts from the opinions of the appellate courts in the appeals listed on the “Representative Cases” page of this website


Matter of Feuerstein, 147 AD3d 688 [1st Dept 2017]:

Surrogate’s Court Procedure Act § 806 states, “Whenever a testamentary trustee is appointed by will or order of the court …, he shall unless the will provides otherwise, execute and file a bond” (emphasis added). In the case at bar, the will provides otherwise: it says that “no Executor or Trustee shall be required to file or furnish any bond.” Therefore, the court should not have required petitioners to file a bond (see Matter of Solomon, 18 Misc.2d 1029, 189 N.Y.S.2d 831 [Sur.Ct., Kings County 1959] ; Matter of Ibelli, 15 Misc.2d 499, 501, 181 N.Y.S.2d 913 [Sur.Ct., Kings County 1958] ).

The February 2014 trust declaration was attached to a motion that was later withdrawn. “The effect of a withdrawal of a motion is to leave the record as it stood prior to its filing as though it had not been made” (matter of stoute v. city oF new york, 91 a.D.2d 1043, 1044, 458 n.y.s.2d 640 [2d Dept.1983] [emphasis deleted], lv. dismissed 59 N.Y.2d 762 [1983] ). Thus, the record should not have included the trust declaration that the court required petitioners to attach to the decree being appealed.

In addition, “[t]here is no authority to justify impressing on a testamentary trust a greater obligation than the testator himself would have, if he were alive” (Matter of Maul v. Fitzgerald, 78 A.D.2d 706, 708, 432 N.Y.S.2d 282 [3d Dept.1980] ). There is no indication in the will that the testatrix wanted annual accountings for the trust that she established for her son. Courts have recognized that “[t]here is no statutory requirement that annual accountings be filed with the Court” (Matter of Chierchia, N.Y.L.J., Feb. 11, 2010, at 37, col. 5 [Sur.Ct., Kings County]; Matter of Maria M., N.Y.L.J., Sept. 18, 2009, at 35, col. 2 [Sur.Ct., Kings County] ) and that “[i]t is ‘unnecessary to mandate an annual accounting and burden the trust with the inherent costs’ ” (Chierchia [quoting] Matter of Kaidirmaoglou, N.Y.L.J., Nov. 5, 2004 [Sur.Ct., Suffolk County]; see also Matter of Stawarz, N.Y.L.J., Apr. 10, 2013, at 30 [Sur.Ct., Suffolk County] ).


Farrell Forwarding v Alison Transport, 119 AD3d 891 [2d Dept 2014]:

After the plaintiff failed to appear at a court-ordered conference, the defendant moved for leave to enter a default judgment and to dismiss the complaint pursuant to 22 NYCRR 202.27(b). In opposition to the motion, the plaintiff failed to establish either a reasonable excuse for the default or a potentially meritorious cause of action. Accordingly, the motion for leave to enter a default judgment and to dismiss the complaint was properly granted (see Aydiner v Grosfillex, Inc., 111 AD3d 589).

However, the judgment should have dismissed the complaint without prejudice, since dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291).


Von Fricken v Schaefer, 118 AD3d 869 [2d Dept 2014]:

The subject of this action for accelerated relief pursuant to CPLR 3213 is a handwritten instrument dated April 29, 2008, and executed by the defendant before a notary public (hereinafter the Document). The Document states that the defendant borrowed the sum of $25,000 from her now-deceased mother (hereinafter the decedent), and that she “will pay her [mother] back in full with [her] lawsuit money from Billy-of Cool Temp Mechanical-or any debt will be paid in full.”

In the affidavit submitted in support of the plaintiff’s motion for summary judgment in lieu of complaint, the plaintiff, as administrator of the decedent’s estate, alleged that the defendant “signed a promissory note … promising to repay $25,000.00, no part of which has been repaid.” The plaintiff also alleged that, at the defendant’s deposition in a probate proceeding involving the decedent’s estate, the defendant admitted that she executed the Document and received the sum of $25,000 from the decedent. The Supreme Court granted the plaintiff’s motion, and entered judgment accordingly.

Pursuant to CPLR 3213, a party may obtain accelerated relief by moving for summary judgment in lieu of complaint, provided that the action is “based upon an instrument for the payment of money only or upon any judgment” (CPLR 3213; see Schulz v. Barrows, 94 N.Y.2d 624, 627–628, 709 N.Y.S.2d 148, 730 N.E.2d 946). “A promissory note is an instrument for the payment of money only, provided that it contains an unconditional promise by the borrower to pay the lender over a stated period of time” ( Lugli v. Johnston, 78 A.D.3d 1133, 1134, 912 N.Y.S.2d 108;see Weissman v. Sinorm Deli, 88 N.Y.2d 437, 444, 646 N.Y.S.2d 308, 669 N.E.2d 242;Ro & Ke, Inc. v. Stevens, 61 A.D.3d 953, 878 N.Y.S.2d 394;Stallone v. Rostek, 27 A.D.3d 449, 450, 809 N.Y.S.2d 920). An instrument does not qualify for accelerated relief under CPLR 3213 “if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document” ( Weissman v. Sinorm Deli, 88 N.Y.2d at 444, 646 N.Y.S.2d 308, 669 N.E.2d 242;see Lugli v. Johnston, 78 A.D.3d at 1134, 912 N.Y.S.2d 108;Ro & Ke, Inc. v. Stevens, 61 A.D.3d 953, 878 N.Y.S.2d 394;Stallone v. Rostek, 27 A.D.3d at 450, 809 N.Y.S.2d 920).

Therefore, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law pursuant to CPLR 3213 by showing that the defendant executed the subject instrument, the instrument contains an unconditional promise to repay the plaintiff upon demand or at a definite time, and the defendant failed to pay in accordance with the instrument’s terms ( see Weissman v. Sinorm Deli, 88 N.Y.2d at 444, 646 N.Y.S.2d 308, 669 N.E.2d 242;Lugli v. Johnston, 78 A.D.3d at 1135, 912 N.Y.S.2d 108;Ro & Ke, Inc. v. Stevens, 61 A.D.3d at 953, 878 N.Y.S.2d 394;cf. Jin Sheng He v. Sing Huei Chang, 83 A.D.3d 788, 789, 921 N.Y.S.2d 128;Gregorio v. Gregorio, 234 A.D.2d 512, 513, 651 N.Y.S.2d 599).

Here, the record does not support the Supreme Court’s determination that the Document reflects the defendant’s unconditional promise to repay the borrowed sum upon demand or at definite time ( see Weissman v. Sinorm Deli, 88 N.Y.2d at 444, 646 N.Y.S.2d 308, 669 N.E.2d 242). Rather, the Document states that the defendant will repay the money loaned to her “in full with [her] lawsuit money from Billy—of Cool Temp Mechanical—or any debt will be paid in full.” Thus, the plaintiff failed to establish, prima facie, her entitlement to judgment as a matter of law ( see Weissman v. Sinorm Deli, 88 N.Y.2d at 444, 646 N.Y.S.2d 308, 669 N.E.2d 242;Lawrence v. Kennedy, 95 A.D.3d 955, 957, 944 N.Y.S.2d 577;Stallone v. Rostek, 27 A.D.3d at 449, 809 N.Y.S.2d 920).

Accordingly, the Supreme Court should have denied the plaintiff’s motion, without regard to the sufficiency of the papers submitted in opposition ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).


Gampero v Mathai, 105 AD3d 995 [2d Dept 2013]:

On June 3, 2008, the plaintiff Louis Gampero and the defendant Monachan Mathai entered into a stock purchase agreement (hereinafter the stock purchase agreement) for the sale of an automobile collision repair business known as New Security Collision, Inc. (hereinafter New Security) from Mathai to Gampero. The stock purchase agreement contained an indemnification provision. In the stock purchase agreement, Mathai expressly represented that New Security had no unpaid debts, tax liabilities, or other financial obligations. The closing was conducted on July 29, 2008, but, after it took place, Gampero began receiving invoices and notices of debts, which he claims had accrued prior to the closing and, therefore, were Mathai’s responsibility. One of the creditors was an auto supply company, Security Dodge Chrysler, which commenced an action against New Security in the District Court, Suffolk County, seeking to recover payments on invoices in the amount of $9,476.10.

In May 2009, Gampero and New Security commenced this action, alleging, inter alia, breach of contract and fraudulent misrepresentation. The plaintiffs sought enforcement of the indemnification provision of the stock purchase agreement. The plaintiffs successfully moved for summary judgment, in effect, on the first and third causes of action, which sought indemnification and an award of an attorney’s fee, respectively. The Supreme Court entered an amended judgment in the plaintiffs’ favor and against Mathai in the sum of $32,203.88.

The Supreme Court erred in granting those branches of the plaintiffs’ motion which were for summary judgment on the first and third causes of action. With respect to the first cause of action, pursuant to which the plaintiffs sought to enforce the indemnification provision of the stock purchase agreement, the plaintiffs failed to demonstrate that they had made payment on the debts for which Mathai was allegedly liable, or that they had suffered a loss in connection with those alleged debts. With limited exceptions not applicable here, a cause of action seeking indemnification is not enforceable until payment is made or a loss is suffered by the party seeking indemnification ( see McDermott v. City of New York, 50 N.Y.2d 211, 217, 428 N.Y.S.2d 643, 406 N.E.2d 460;Bay Ridge Air Rights v. State of New York, 44 N.Y.2d 49, 54, 404 N.Y.S.2d 73, 375 N.E.2d 29;Varo, Inc. v. Alvis PLC, 261 A.D.2d 262, 265, 691 N.Y.S.2d 51). Here, the plaintiffs failed to establish, prima facie, that they actually paid any of the debts they attribute to Mathai. The plaintiffs’ proof on that issue, which was submitted for the first time in their reply papers, may not be considered for purposes of establishing their prima facie entitlement to judgment as a matter of law ( see Rosenzweig v. Friedland, 84 A.D.3d 921, 925, 924 N.Y.S.2d 99;Tingling v. C.I.N.H.R., Inc., 74 A.D.3d 954, 955, 903 N.Y.S.2d 89). Additionally, with respect to a Workers’ Compensation penalty for which the plaintiffs sought indemnification, they failed to establish that the penalty was incurred when Mathai still owned New Security.

The plaintiffs also failed to establish their entitlement to judgment as a matter of law on their third cause of action, which sought an award of an attorney’s fee. The language of the indemnification provision does not clearly and unambiguously permit the plaintiffs to recover from Mathai an attorney’s fee incurred in connection with the prosecution of the instant action ( see Adesso Café Bar & Grill, Inc. v. Burton, 74 A.D.3d 1253, 1254, 904 N.Y.S.2d 490), and the plaintiffs failed to demonstrate that any of the legal work performed by their counsel was necessary to defend the District Court action commenced against them by Security Dodge Chrysler. Consequently, that branch of the plaintiffs’ motion which was for summary judgment on the third cause of action should have been denied.


Rizzuti v Laucella, 57 AD3d 755 [2d Dept 2008]:

The plaintiff’s Angela Rizzuti and Joseph Rizzuti, owners and operators of a hair salon, allegedly found a flyer on the lamp post outside their business purporting to advertise a fund raiser at their salon to benefit the Pediatric AIDS Foundation, which contained a photograph of the plaintiff Angela Rizzuti and stated, inter alia: “My husband Joseph and I have been fighting our HIV illness now for eleven years.”

The plaintiff commenced this action against Michael Laucella and Marie Laucella based upon allegations that the photograph on the flyer depicting the plaintiff Angela Rizzuti was cut out of a group photograph in which the defendant Marie Laucella also appeared and that a long-pending lawsuit between the plaintiff Joseph Rizzuti and the defendant Michael Laucella over a real estate transaction created “bad blood” between the families. The plaintiff’s contended that they lost a significant amount of business due to the publication of this flyer and suffered emotional distress as well as financial losses. The defendants denied any connection to the offending flyer, and cross-claimed to recover damages for malicious prosecution.

In the course of discovery, the defendants demanded that the plaintiff’s produce their tax returns and the appointment logs for their business. The plaintiff’s refused to produce these items, claiming that the privacy of clients and their business secrets would be violated. They did not, however, move for a protective order, while the defendants moved to compel production of these items as well as to obtain long-overdue responses to interrogatories and their notice for discovery and inspection.

In an order dated February 7, 2007 the Supreme Court directed the plaintiff’s to comply with the defendants’ notices for discovery and inspection and demand for interrogatories or, without further order, their action would be dismissed. The plaintiff’s’ counsel sent cursory responses to the defendant’s discovery demands that were inadequate in content and unverified by either of the parties or by any person claiming knowledge of the facts asserted therein. As such, the purported responses may not be considered to be the sort of competent evidence that parties are required to disclose pursuant to due demand or notice ( see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455).

Additionally, the plaintiff’s continued to refuse to produce tax returns or appointment logs, and finally, by letter of counsel dated March 2007, counsel for the first time asserted that a search for the appointment logs had been conducted and that they could not be located.

Upon the defendants’ motion to dismiss the complaint, the court found that the plaintiff’s’ failure to produce these records constituted spoliation of evidence, as the plaintiff’s had made previously-possible disclosure impossible. Furthermore, it held that the failure of the plaintiff’s to move for a protective order pursuant to CPLR 3103 permitted a negative inference to be drawn that the evidence was discarded after service of the notice to produce was effected and the court order requiring its production was entered ( see Ferraro v Koncal Assoc., 97 AD2d 429).

The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the motion court ( see Novick v DeRosa, 51 AD3d 885; Martin v City of New York, 46 AD3d 635). The drastic remedy of dismissing a complaint or striking a pleading pursuant to CPLR 3126 (3) for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious ( see Novick v DeRosa, 51 AD3d 885; Martin v City of New York, 46 AD3d 635; Bomzer v Parke-Davis, Div. of Warner Lambert Co., 41 AD3d 522).

Here, the plaintiffs’ willful and contumacious conduct can be inferred from their failure to provide responses to the defendants’ discovery demands, failure to abide by court orders, unsupported, inconsistent excuses for their failure to produce documents, and the absence of any reasonable excuse for these failures ( see Martin v City of New York, 46 AD3d 635; Maiorino v City of New York, 39 AD3d 601). Accordingly, the Supreme Court providently exercised its discretion in granting the defendants’ motion to dismiss the complaint.


Cavaluzzi v Beyers, 306 AD2d 429 [2d Dept 2003]:

The defendant met his initial burden of establishing his entitlement to summary judgment dismissing the complaint on the ground that the action, commenced in July 1999, was time-barred (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320). The plaintiff expressly limited his dental malpractice claim to allegations of negligence regarding root canal work performed on one particular tooth in 1994, and the action was commenced more than 2 1/2 years after the claim accrued (see CPLR 214-a).

In opposition to the motion, the plaintiff presented sufficient evidence to present a triable issue of fact as to whether the defendant allowed a foreign object to remain in his mouth after completion of the root canal procedure. In that event, the plaintiff’s action would not be time-barred under the “foreign object” exception to the statute of limitations, as the action was commenced within one year of the plaintiff’s discovery of the alleged foreign object (CPLR 214-a; see Rockefeller v. Moront, 81 N.Y.2d 560; Polichetti v. Cohen, 268 A.D.2d 417) . Accordingly, the defendant’s motion for summary judgment should have been denied.


Pedro v Walker, 46 AD3d 789 [2d Dept 2007]:

To prevail on a claim of legal malpractice, “a plaintiff must demonstrate that the attorney `failed to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages” ( Rudolf v Shayne, Dachs, Stanisci, Corker Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301-302; see Barnett v Schwartz, 47 AD3d 197; Porello v Longworth, 21 AD3d 541; Dimond v Kazmierczuk McGrath, 15 AD3d 526, 527; Ippolito v McCormack, Damiani, Lowe Mellon, 265 AD2d 303). For a defendant in a legal malpractice case to prevail on a motion for summary judgment, he or she must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the above-cited essential elements ( see Ippolito v McCormack, Damiani, Lowe Mellon, 265 AD2d 303; Ostriker v Taylor, Atkins Ostrow, 258 AD2d 572).

Here, the Supreme Court erred in granting that branch of the motion of the defendant Joshua N. Bleichman which was for summary judgment dismissing the complaint insofar as asserted against him. Bleichman failed to make a prima facie showing of entitlement to judgment as a matter of law since he failed to show that the plaintiff was unable to prove at least one of the essential elements of her legal malpractice cause of action. Thus, we need not address the sufficiency of the opposing papers ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).


People v Elpenord, 24 AD3d 465 [2d Dept 2005]

At approximately 1:23 A.M. on June 23, 2003, two police officers responded to a radio call regarding shots fired in the vicinity of a specified address in Uniondale, Nassau County, with a vehicle speeding away from the scene. There was no description of the shooter or the vehicle.

The police observed the defendant’s vehicle speeding and going through a stop sign a short time thereafter. They turned on the police car’s lights, and the defendant led them on a chase before finally pulling over after being cut off by another police vehicle. The police did not use the computer in their car to “run” the vehicle’s license plate to determine the owner of the vehicle.

According to the police, the defendant had only an expired learner’s permit on his person, and produced no registration or insurance card for the car. The passenger possessed a valid driver’s license. The defendant told the police that the car belonged to his mother, and that he had her permission to drive it.

The police decided to impound the car and perform an inventory search at the scene. Two officers began searching the car, while another began filling out the top portion of a standard Nassau County Police Department inventory search form. One officer discovered a black nylon bag in the trunk, which contained both a handgun and the defendant’s valid interim driver’s license. The defendant stated that the black nylon bag belonged to him. He later admitted to buying the gun from a “crack head.”

The officer never completed the inventory search form, and never made any entries in his memorandum book, as required by article 6, rule 20 of the Nassau County Police Department’s Patrol Guide. The police later verified that the car did indeed belong to the defendant’s mother, who had given him permission to drive it.

The legality of the inventory search was addressed at a hearing pursuant to a stipulation in lieu of motions. The hearing court denied suppression of the gun and the defendant’s statements, holding that the police conducted a valid inventory search. We disagree.

An inventory search will be upheld when it follows a valid traffic stop and arrest, and is conducted in accordance with standard police procedures which limit the discretion of the searching officer ( see People v. Galak, 80 NY2d 715, 718). Such searches advance three specific objectives: protecting the owner’s property while the police retain custody of the vehicle, insuring the police against claims of lost or stolen property, and guarding the police against dangers that might otherwise go undetected ( see Colorado v. Bertine, 479 US 367, 372; People v. Galak, supra; see also People v. Cammock, 144 AD2d 375). “In its modern Fourth Amendment jurisprudence, the [United States] Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual’s right to be free from arbitrary interference by law enforcement officers” ( People v. Galak, supra at 718, citing Colorado v. Bertine, supra). “While the discovery of incriminating evidence may be a consequence of an inventory search, it should not be its purpose” ( People v. Russell, 13 AD3d 655, 657). It is the People’s burden to demonstrate the legality of police conduct in the first instance ( see People v. Thomas, 291 AD2d 462, 463).

The People failed to meet that burden in the instant case. The testimony of the police officers who conducted the search of the defendant’s vehicle demonstrated that they failed to follow the procedures established in the Nassau County Police Department’s Patrol Guide. These procedures exist in order to protect the owner’s property and insure the police against claims of lost or stolen property. The inventory search in the instant case accomplished neither of these objectives. Instead, the inventory search appears to have been a pretext, under which the police could search the car for evidence relating to the reported shooting, without probable cause ( see People v. Johnson, 1 NY3d 252, 257). Therefore, both the gun and the defendant’s statements should have been suppressed. The defendant’s conviction of criminal possession of a weapon in the third degree (two counts) must, accordingly, be vacated and those counts of the indictment dismissed.


Gallagher v Samples, 6 AD3d 659 [2d Dept 2004]:

The jury award for past pain and suffering and past medical expenses did not materially deviate from what would be reasonable compensation in this case ( see Semple v. New York City Tr. Auth., 301 A.D.2d 514; Sandy v. New York City Tr. Auth., 297 A.D.2d 667; Van Ness v. New York City Tr. Auth., 288 A.D.2d 374; Ferrantello v. St. Charles Hosp. and Rehabilitation. Ctr., 275 A.D.2d 387; Panzarino v. Carella, 247 A.D.2d 521).

However, we agree with the plaintiff that she is entitled to a new trial with respect to damages for future pain and suffering and future medical expenses. The Supreme Court erroneously charged the jury that it could only award future damages upon a finding that she sustained a permanent injury ( see Velez v. Svehla, 229 A.D.2d 528). Although the plaintiff failed to object to the charge, the error was fundamental under the circumstances of the case. Therefore, we reach the issue in the exercise of discretion ( see Decker v. Rassaert, 131 A.D.2d 626).


Rizzuto v Getty Petroleum Corp., 289 AD2d 217 [2d Dept 2001]:

An underground petroleum storage tank owned by the appellants leaked onto the respondents’ properties. The appellants admitted to liability, and the respondents were awarded damages in the principal sum of $509,000 for the diminution in value of their properties.

Contrary to the appellants’ contention, the damages awarded to the respondents did not deviate materially from what would be reasonable compensation (see, CPLR 5501[c]). Furthermore, although certain appraisal reports were hearsay and, therefore, improperly admitted into evidence, the error was harmless since we are satisfied that the result would have been the same if the appraisal reports had not been admitted (see, Barracato v. Camp Bauman Buses, 217 A.D.2d 677)


Advanced Conservation Sys. v Elissa & Scott Realty Corp., 268 AD2d 543 [2d Dept 2000]

In a cross claim, the defendant B.B. Construction Consultants (hereinafter B.B.) alleged that ESRC improperly terminated a contract to provide construction management services. However, the only testimony concerning a contract between B.B. and ESRC was the conclusory statement of B.B.’s principal. That testimony was contradicted by a letter of the principal dated after the purported oral agreement, which was intended to confirm the parties’ understanding, and failed to mention that B.B. was to perform construction management duties. Moreover, the testimony of the architect also implicitly contradicted B.B.’s assertion. Therefore, the Supreme Court’s conclusion that B.B. contracted with ESRC to perform construction manager services could not have been reached on any fair interpretation of the evidence (see, BGW Dev. Corp. v. Mount Kisco Lodge No. 1552, 247 A.D.2d 565 ; Stevens v. St. Joseph’s Hosp., 52 A.D.2d 722 ), and B.B.’s cross claim must be dismissed. Since B.B. bore the burden of proving that it was a contracting party, ESCR did not need to raise the issue as an affirmative defense (see, CPLR 3018[b]).

B.B. is not entitled to quantum meruit damages because it failed to seek this relief at trial and did not prove the value of its services (cf., Lehrer McGovern Bovis v. New York Yankees, 207 A.D.2d 256 ).


Matter of Popper, 242 AD2d 297 [2d Dept 1997]:

The Referee should have conducted a hearing with respect to the objections which raised factual issues which cannot be determined on the present record (see, CPLR 4320 [a]; Shultis v Woodstock Land Dev. Assocs., 195 AD2d 677; 30 Carmody-Wait 2d, NY Prac § 166:135, at 261; 92 NY Jur 2d, References, § 34). Furthermore, the record before the court on the issue of whether to confirm the Referee’s report should contain the documents considered by the Referee in arriving at his recommendation (see, Zakkai v David, 285 App Div 1121). Therefore, the matter is remitted to the Supreme Court so that a hearing can be held and the necessary documentation submitted. At the conclusion of that hearing, the court must determine what commission, if any, is owed to the guardian.

Since the Supreme Court failed to set forth the basis for its award of attorney’s fees to the guardian’s attorney, this Court is unable to evaluate the appropriateness of that award on the record now before us. Consequently, that issue is remitted for reconsideration (see, Matter of Wogelt, 223 AD2d 309, 315).

Additionally, the Supreme Court erred in awarding the Referee $3,000 in compensation. The Referee submitted a statement averring that he had spent in excess of 20 hours on the matter, and requested compensation of $3,000. However, since the record does not contain any agreement concerning the Referee’s compensation which was made prior to the Referee’s performance of his duties, the Referee’s fee must be limited to the statutory per diem fee of $50 (see, CPLR 8003 [a]; Majewski v Majewski, 221 AD2d 420; Neuman v Syosset Hosp. Anesthesia Group, 112 AD2d 1029).


Albert v Albert, 126 AD3d 921 [2d Dept 2015]:

“A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances,” which are not applicable here (Matter of McClarin v Valera, 108 AD3d 719, 719; see CPLR 4317; Matter of Stewart v Mosley, 85 AD3d 931, 932). Here, the parties did not consent to the determination of any issues by a referee, and the order of reference directed the referee to hear and report (see CPLR 4317[a]). Absent the parties’ consent, the referee had the power only to hear and report his findings (see CPLR 4317[a]; see also Matter of McClarin v Valera, 108 AD3d at 720; Matter of Stewart v Mosley, 85 AD3d at 932). Thus, the referee exceeded his authority in signing an order to show cause pursuant to which the defendant, in effect, sought leave to submit a motion to modify a prior order of custody and to stay the enforcement of an order entered in a related custody proceeding commenced in the Family Court, pending her appeal of that order. The referee further exceeded his authority in temporarily restraining the enforcement of the Family Court’s order and all proceedings in the Family Court pending the determination of that branch of the defendant’s motion which was for a stay (see Matter of Martinborough v Martinborough, 98 AD3d 511, 512; Matter of Gale v Gale, 87 AD3d 1011, 1012). Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, to vacate the order to show cause.


Rizzo v Lincoln Town Diner Corp., 215 AD2d 546 [2d Dept 1995]:

At about 7:15 P.M. on December 22, 1989, a very cold night, as the plaintiff Elsie B. Rizzo was leaving the Merrick Townhouse Diner (hereinafter the diner) with her husband and granddaughter, she slipped on a mound of shaved ice that had been dumped on the walkway adjoining the parking lot where, within the preceding hour, an unrefrigerated truck had made a delivery of frozen fish. Two of the diner’s employees had helped to unload the fish. Mrs. Rizzo’s ankle was badly fractured, requiring surgical repair. Following discovery, the defendants moved for summary judgment on the ground that they had not created the condition, nor had they had actual or constructive notice of it. The court granted the defendants’ motion, and the plaintiffs appeal. We now reverse.

In the context of a motion for summary judgment, the court is obliged to draw all reasonable inferences in favor of the non-moving party, and may not pass on issues of credibility (Negri v Stop Shop, 65 N.Y.2d 625, 626; Assaf v Ropog Cab Corp., 153 A.D.2d 520, 521; Pantote Big Alpha Foods v Schefman, 121 A.D.2d 295, 297). The plaintiffs have presented ample evidence, if true, to establish that the defendants, in the person of the diner manager and one of his employees, either created the icy condition or had actual notice of it (see, e.g., Padula v Big V Supermarkets, 173 A.D.2d 1094, 1096; see also, Kelsey v Port Auth., 52 A.D.2d 801; Cameron v Bohack Co., 27 A.D.2d 362, 365). Furthermore, the record suggests that the rather large accumulation of shaved ice lay upon the walkway near where the unrefrigerated truck had delivered its cargo of frozen fish for the better part of an hour before Mrs. Rizzo slipped and fell on it (see, e.g., Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Negri v Stop Shop, 65 N.Y.2d 625, 626, supra). In a case such as this, the “question of whether a defendant’s conduct amounts to negligence is * * * a question for the trier of fact” (Johannsdottir v Kohn, 90 A.D.2d 842).


Frohman v Frohman, 203 AD2d 420 [2d Dept 1994]:

The Supreme Court, on its own initiative, imposed a sanction of $1,500 against the plaintiff’s law firm. This was improper in that the court did not follow the mandate of 22 NYCRR 130-1.1 (d). Counsel was not put on notice, by the defendant or by the court, that any such sanction was being sought or contemplated (see, Mazo v NYRAC, Inc., 191 AD2d 617; Giblin v Anesthesiology Assocs., 171 AD2d 839). Since we cannot say that sanctions are unwarranted, we remit the matter for a hearing on that issue (see, Giblin v Anesthesiology Assocs., supra).

In view of the remittitur, we note that the challenged sanctions were erroneously made payable to the defendant rather than to the Lawyers’ Fund for Client Protection of the State of New York (see, 22 NYCRR 130-1.3; Martino v Martino, 194 AD2d 591).


Ellis v Griffin, 308 AD2d 449 [2d Dept 2003], lv denied 2 NY3d 704 [2004]:

In 1995 the mother of the subject child became pregnant while engaged in a sexual relationship with Corin Ellis, the petitioner in Proceeding No. 1 (hereinafter the appellant). In April 1996 she gave birth to a baby girl. Four days after the child’s birth, the appellant and the mother signed an acknowledgment of paternity attesting that the appellant was the father of the child. Subsequently, the mother went away to college in Louisiana, and the appellant and the maternal grandmother petitioned for joint custody and visitation. In 1996 an order of joint custody was granted, on consent, while physical custody was awarded to the maternal grandmother.

In 1999 the mother informed the appellant that he might not be the father of the child. At the same time, the mother informed her former boyfriend, Troy Golding, the petitioner in Proceeding No. 2 (hereinafter the respondent), that he could be the father of the child. The respondent commenced Proceeding No. 2 to vacate the acknowledgment of paternity naming the appellant as the father of the child. Court-ordered blood tests revealed that the respondent is the biological father of the child.

The appellant sought to apply the doctrine of equitable estoppel to support his claim that it would be inequitable to him, and contrary to the best interests of the child, to allow the biological father to assert a claim of paternity. However, over the objection of the Law Guardian, the Family Court refused to apply the doctrine of equitable estoppel. We reverse.

When the mother was pregnant, the respondent asked her if he was the father of the child. The mother informed him that she did not know. However, despite knowing that he had a sexual relationship with the mother nine months prior to the child’s birth, the respondent waited until the child was three years old, after the mother informed him that he might be the child’s father, to commence a paternity proceeding. In the meantime, the appellant was with the mother at the hospital when the child was born, and four days later signed an acknowledgment of paternity. The appellant raised and nurtured the child and paid for her tuition at a private school. Significantly, while the mother was away at college, the appellant worked nights and was the child’s primary caretaker, spending every day with her while the maternal grandmother worked. The child calls the appellant “daddy” and the testimony establishes that they have a loving father-daughter relationship.

Thus, contrary to the determination of the Family Court, it would be in the child’s best interests, a paramount concern in paternity proceedings, to equitably estop the respondent from challenging the appellant’s paternity of the child ( see Matter of Ettore I. v. Angela D., 127 A.D.2d 6; but see Matter of Delcore v. Mansi, 262 A.D.2d 559 ).

Accordingly, the Family Court improperly granted the respondent’s cross motion to vacate the acknowledgment of paternity naming the appellant as the father of the child. Therefore, we reverse that order, and vacate the filiation order dated May 6, 2002, naming the respondent as the child’s father.


Cavayero v Cavayero, 184 AD3d 801 [2d Dept 2020]:

The parties were married in 1983 and had two children together. In 2001, they entered into a separation agreement which provided for certain distributions of property and provided that the plaintiff was obligated to pay child support to the defendant. The parties divorced in 2004, and both the separation agreement and an amendment to the separation agreement were incorporated but not merged into the judgment of divorce. In 2014, after the children were emancipated, the defendant moved, inter alia, to hold the plaintiff in contempt and for an award of certain child support arrears. The Supreme Court denied the defendant’s motion without a hearing, concluding that the defendant waived her rights under the separation agreement and the amendment to the separation agreement, including the right to receive child support.

A valid waiver ” ‘requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver[,] would have been enforceable’ ” ( Golfo v. Kycia Assoc., Inc., 45 A.D.3d 531, 532, 845 N.Y.S.2d 122, quoting Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265 ; see Gresser v. Princi, 128 A.D.2d 752, 513 N.Y.S.2d 462 ). It may arise by either an express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage (see Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136 ; Cotton v. Cotton, 76 A.D.3d 1041, 1042, 908 N.Y.S.2d 133 ). A waiver “is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” ( Peck v. Peck, 232 A.D.2d 540, 540, 649 N.Y.S.2d 22 ). Rather, the party claiming a waiver must proffer evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right (see Matter of Tafuro v. Tafuro, 102 A.D.3d 877, 878, 958 N.Y.S.2d 202 ; Stevens v. Stevens, 82 A.D.3d 873, 874, 918 N.Y.S.2d 879 ; Matter of Barrio v. Montanez, 71 A.D.3d 1140, 896 N.Y.S.2d 905 ).

Here, in opposition to the defendant’s motion, the plaintiff failed to establish, as a matter of law, that the defendant’s conduct after the parties entered into the separation agreement constituted “a voluntary and intentional relinquishment of … known and otherwise enforceable right[s]” pursuant to the parties’ separation agreement and judgment of divorce ( Matter of O’Connor v. Curcio, 281 A.D.2d 100, 104, 724 N.Y.S.2d 171 [internal quotation marks omitted]; see Matter of Dox v. Tynon, 90 N.Y.2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398 ; Matter of Gleason v. Gleason, 247 A.D.2d 384, 668 N.Y.S.2d 657 ). Therefore, the Supreme Court should not have denied the defendant’s motion without a hearing. Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for a hearing and new determination of the defendant’s motion.


LoMacchio v LoMacchio, 247 AD2d 539 [2d Dept 1998]:

The mother in this case made a sufficient showing: of a change of circumstances and that the child’s needs were not being met by her own income and the support she received from the appellant father so as to warrant an increase in child support ( see, Matter of Brescia v. Fitts, 56 N.Y.2d 132). Furthermore, the Hearing Examiner’s findings articulate the basis for the decision not to limit the application of the statutory formula of the Child Support Standards Act to the first $80,000 of the father’s income, and to apply that formula to the total of his income, and reflect a careful-consideration of the parties’ circumstances ( see, Family Ct Act § 413 [c]; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655; Manno v. Manno, 224 A.D.2d 395). The ultimate increase in the amount of child support awarded was neither unjust nor inappropriate ( see, Family Ct Act § 413 [ l]).


Luisi v Luisi, 6 AD3d 398 [2d Dept 2004]:

Contrary to the plaintiff’s contention, the defendant was not required to institute a plenary action, as he was seeking to enforce, rather than to modify, the terms of the parties’ stipulation of settlement which was incorporated but not merged in the judgment of divorce ( see Fishkin v. Fishkin, 201 A.D.2d 202; Derasmo v. Derasmo, 190 A.D.2d 655; cf. Lambert v. Lambert, 142 A.D.2d 557). The Supreme Court properly determined that, based on a reasonable interpretation of the stipulation, the defendant was entitled to claim the parties’ children as dependents on his tax returns for the years at issue ( see Malleolo v. Malleolo, 287 A.D.2d 603; see also Dunham v. Dunham, 214 A.D.2d 961).

In the order dated September 24, 2001, the Supreme Court granted that branch of the plaintiff’s cross motion which was to invalidate the child support provisions of the parties’ 1992 stipulation of settlement and their 1996 stipulation due to the failure to include language indicating, inter alia, their awareness of the Child Support Standards Act (hereinafter the CSSA) pursuant to Domestic Relations Law § 240(1-b) (h) ( see Cardinal v. Cardinal, 275 A.D.2d 756; Toussaint v. Toussaint, 270 A.D.2d 338; Matter of Phillips v. Phillips, 245 A.D.2d 457). The defendant did not appeal from that order.

Based on her claim that the child support provisions in these stipulations were invalid, the plaintiff cross-moved to recalculate the defendant’s child support obligation, retroactive to March 2, 1992, based on the parties’ respective incomes in each intervening year through the date of her cross motion on March 5, 2001. She also cross-moved for an upward modification of support based on the children’s increased needs, retroactive to March 5, 2001.

In the order dated September 24, 2001, the Supreme Court indicated that it would recalculate child support based on the parties’ income in 1992 and 1996, and granted the plaintiff’s request for an upward modification of support only to the extent that an increase would be required based on the parties’ 1992 and 1996 financial information. The Supreme Court directed the parties to provide financial information for 1992 and 1996.

In the order dated September 17, 2002, the Supreme Court granted that branch of the plaintiff’s cross motion which was to recalculate support to the extent of awarding her child support arrears retroactive from March 2, 1992, to March 5, 2001, in the sum of $27,587.57. The Supreme Court granted her request for an upward modification of support to the extent of determining that the defendant’s child support obligation as of March 5, 2001, was $288 per week.

The Supreme Court erred in awarding the plaintiff child support arrears retroactive to 1992 as it, in effect, impermissibly reformed the parties’ stipulations by postjudgment motion in the matrimonial action. Such relief must be obtained in a plenary action ( see Spataro v. Spataro, 268 A.D.2d 467; Zavaglia v. Zavaglia, 234 A.D.2d 1010; Fine v. Fine, 191 A.D.2d 410; compare Tartaglia v. Tartaglia, 260 A.D.2d 628).

Based on its determination that the parties’ 1992 and 1996 agreements concerning child support were unenforceable, the Supreme Court should have made a new determination of the parties’ respective child support obligations in accordance with the CSSA ( see Weimer v. Weimer, 281 A.D.2d 989; Brown v. Powell, 278 A.D.2d 846; Zenz v. Zenz, 260 A.D.2d 474; Matter of Phillips v. Phillips, supra), retroactive only to March 5, 2001, the date of the plaintiff’s cross motion ( see Matter of Schaller v. Schaller, 279 A.D.2d 525; Clark v. Liska, 263 A.D.2d 640; Domestic Relations Law § 240[h]). Furthermore, in making this determination, the Supreme Court erred in relying on the parties’ financial circumstances in 1996, rather than on the most recent Federal tax returns available in 2001, as required by Domestic Relations Law § 240(1-b) (b)(5)(i). Accordingly, we remit the matter to the Supreme Court, Queens County, for a new determination of the parties’ respective child support obligations in accordance herewith.

In view of our conclusion that the Supreme Court should have determined the parties’ respective child support obligations based on their financial circumstances at the time the plaintiff cross-moved for a modification in 2001, we need not reach the plaintiff’s contention that she was entitled to an upward modification of child support based on an unanticipated or unreasonable change in circumstances since 1996 or on the ground that the support awarded in 1996 was inadequate to meet the increased needs of the children ( see generally Matter of Brescia v. Fitts, 56 N.Y.2d 132).


Moore v Moore, 111 AD2d 375 [2d Dept 1985]:

The 1980 amendments to Domestic Relations Law § 244 (see, L 1980, ch 645, § 5) have divested the courts of discretion in determining whether to enter a judgment for arrears in child support payments. The court must direct entry of the judgment unless the defaulting party shows “good cause” for failing to move for relief from or modification of the judgment or order directing such payment. Here, the wife was entitled to an order directing entry of a money judgment for child support arrears, inasmuch as the husband concedes that he did not make the payments, and he has not demonstrated good cause for his failure to apply for relief from the support order prior to the accrual of arrears (see, Keff v Keff, 95 AD2d 888; Coveleski v Coveleski, 93 AD2d 924; Matter of Brizzi v Brizzi, 92 AD2d 919). Accordingly, the order is affirmed, insofar as appealed from.


Grasso v Grasso, 47 AD3d 762 [2d Dept 2008]:

However, the husband correctly contends that, in directing him to pay maintenance and child support arrears, the Supreme Court erred in failing to credit him for the mortgage and real estate tax payments on the marital residence which he made pursuant to a pendente lite support order dated March 22, 2000 ( see Markopoulos v Markopoulos, 274 AD2d 457, 459; Crane v Crane, 264 AD2d 749, 752; Mellen v Mellen, 260 AD2d 609, 610). The amounts for which the husband should have been credited for his payments of the mortgage and real estate taxes, after adding a credit for one half of the amount the court awarded him from the proceeds of sale of the marital residence as a sanction for the wife’s failure to cooperate in expediting its sale, were more than sufficient to offset the maintenance and child support arrears calculated by the Supreme Court. Hence, the court should not have awarded the wife maintenance and child support arrears.

The husband also correctly contends that the Supreme Court improvidently exercised its discretion by, in effect, holding him responsible for 100% of the credit card obligations that constitute the parties’ marital debt as well as all the marital debt that was solely in the wife’s name. Under the circumstances of this case, the parties’ marital debt would have been more appropriately distributed by allocating it equally between them, and offsetting it against the net proceeds of the sale of the marital residence after deduction of their contributions of separate property ( see Bogdan v Bogdan, 260 AD2d 521, 522; Gelb v Brown, 163 AD2d 189, 194; see also Levine v Levine, 24 AD3d 625, 626).

The Supreme Court erred in failing to award the husband a credit for the sum of $1,700 in expenses he incurred on behalf of the wife’s daughter from a prior marriage and the sum of $2,500 in fees expended from marital funds on behalf of the wife’s son from a prior marriage.

However, since, at this juncture, the marital residence may already have been sold and the proceeds distributed, we remit the matter to the Supreme Court, Nassau County, for a hearing and determination of the amount of the parties’ marital debt, including accrued interest as of the commencement of the action, and the entry thereafter of an amended judgment directing the wife to pay 50% of the entire marital debt, including 50% of that portion of the marital debt previously satisfied by distribution of the parties’ properties in this action.

We note that at the trial of this matter, the Supreme Court erred in precluding the husband from offering evidence in support of his contention that a loan taken out against his 401(k) account was used to satisfy the marital debt obligation. Accordingly, on remittitur, the Supreme Court shall permit the husband to offer proof as to this at the hearing we are directing, and to credit him with the wife’s portion of any marital debt which he proves was paid from the proceeds of this loan.


Towpash v Towpash, 119 AD2d 567 [2d Dept 1986]:

The parties were married in 1954, and had one child, Ann, born on May 4, 1962. They were divorced by judgment dated December 11, 1978. Pursuant to the divorce judgment, Mary 568*568 M. Towpash (the defendant in the present suit) was granted custody of the parties’ daughter, and exclusive possession of the jointly owned marital home until the child reached the age of 21 years on May 4, 1983. On January 10, 1984, the plaintiff John Towpash commenced this action for partition of the former marital residence. The defendant’s answer set forth, inter alia, an affirmative defense and a counterclaim based upon allegations that the parties had reached a settlement agreement under which the plaintiff would convey to the defendant his undivided one-half share for $80,000, that a contract to that effect was prepared by the plaintiff’s attorney which the defendant signed and delivered with an $8,000 down payment to the plaintiff’s attorney, but that the plaintiff then refused to proceed with the agreed-upon settlement.

By notice of motion dated May 24, 1984, the plaintiff moved for summary judgment. The defendant opposed that motion and cross-moved for enforcement of the alleged settlement agreement. Special Term denied the plaintiff’s motion, and referred the defendant’s cross motion for enforcement of the purported settlement to the trial court. This appeal by the plaintiff ensued.

Manifestly, the alleged contract, purportedly setting forth the parties’ agreement, provides for the sale of an interest in real property. Thus, it is subject to a proper and timely assertion of the Statute of Frauds (see, Raoul v Olde Vil. Hall, 76 AD2d 319). A review of the record shows that the contract was signed neither by the plaintiff, who is the party to be charged nor by his attorney. Although his attorney did sign a receipt for the down payment and the contract when delivered, such is not sufficient to overcome the Statute of Frauds, especially since there is no evidence that written authorization to a lawful agent was ever executed by the plaintiff to his attorney with respect thereto. We find that the plaintiff established the allegations set forth in the complaint and that the affirmative defense and counterclaim are barred by the Statute of Frauds (see, General Obligations Law § 5-703 [2]; Matter of Dolgin Eldert Corp., 31 N.Y.2d 1). Further, the alleged settlement does not, as the plaintiff contends, comply with the provisions of CPLR 2104, nor does the theory of a superseding agreement apply (see, Randim Mktg. v Professional Sports Merchandisers, 571 F Supp 1169; Matter of Dolgin Eldert Corp., supra; Langlois v Langlois, 5 AD2d 75).

There is no basis in the record for applying the doctrine of estoppel against the plaintiff.

The matter is remitted to the Supreme Court, Kings 569*569 County, to determine the relief to be afforded to the plaintiff. Said relief shall be consistent with the judgment of divorce dated December 11, 1978.


Sandra C. v Christian D., 244 AD2d 551 [2d Dept 1997]

Contrary to the mother’s contention, there is a sound and substantial basis in the record for the Family Court’s determination that a transfer of custody to the father would be in the best interests of the child ( see, Eschbach v. Eschbach, 56 N.Y.2d 167). The hearing record amply supports the court’s express finding that the mother persisted in accusing the father of physically and sexually abusing the child even after investigation revealed that such allegations were unfounded. Similarly, the court accurately determined that the mother should not continue to have custody based on her unwillingness to foster a meaningful relationship between the father and the child ( see generally, Young v. Young, 212 A.D.2d 114). Inasmuch as the evidence established that the father is a fit custodian who will provide a stable home environment for the child while fostering the mother-child relationship, we decline to disturb the Family Court’s custody determination ( see, Matter of Gago v Acevedo, 214 A.D.2d 565; Nir v. Nir, 172 A.D.2d 651).

Given the present record, we discern no improvident exercise of discretion in the visitation schedule fixed for the mother by the Family Court. We note in this regard that the mother is always free to present any valid reasons for the expansion of the visitation schedule to the Family Court by means of an appropriate application.


Gago v Acevedo, 214 AD2d 565 [2d Dept 1995], lv den 86 NY2d 706 [1995]

We find no basis for disturbing the trial court’s award of sole custody of the parties’ minor child to the father. It is well settled that, in adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see, Friederwitzer v Friederwitzer, 55 N.Y.2d 89). 566*566 Moreover, the court’s determination depends to a great extent upon its assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parents. Therefore, the findings of the trial court must be treated with great respect unless they lack a sound and substantial basis in the record (see, Matter of Carl J. B. v Dorothy T., 186 AD2d 736; see also, Klat v Klat, 176 AD2d 922; Leistner v Leistner, 137 AD2d 499).

In the present case, the record indicates that the father provided the child with the structure that the child needed and a generally stable home environment during his visitation periods. Further, the father fostered the mother-son relationship. The mother, however, failed to promote stability in the home and the child’s intellectual development to the same degree as the father, although she had primary custody. Moreover, the mother persistently interfered with the father’s visitation rights by making unfounded allegations of child abuse against the father, by coaching the child to make false allegations of abuse, and by causing disruption to the child’s visitation and vacation plans with his father. Interference with the relationship between a child and a noncustodial parent by the custodial parent is an act so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent (see, Leistner v Leistner, supra, 137 AD2d 499; see also, Matter of Krebsbach v Gallagher, 181 AD2d 363, 366).

The mother contends that by awarding primary custody to the father, the trial court improperly interfered with her right to raise the child as a Jehovah’s Witness. The courts may consider religion as one of the factors in determining the best interests of a child, but religion alone may not be the determinative factor (see, Aldous v Aldous, 99 AD2d 197, 199, cert denied 469 US 1109). Although the mother was studying to become a Jehovah’s Witness, neither she nor the child was baptized in that religion. Further, although the child was aware of the proscription of the Jehovah’s Witnesses against celebrating Christmas and birthdays, he had not yet studied their religion. Thus, he had not developed any actual religious ties to the religion of the Jehovah’s Witnesses (Aldous v Aldous, supra, at 199; see also, Spring v Glawon, 89 AD2d 980). Moreover, there is no evidence in the record that, because the father permitted the child to choose whether he would participate in certain holiday or birthday celebrations, the child’s well-being was threatened. Under these circumstances, the trial court did not improvidently exercise its 567*567 discretion by declining to intrude on either parties’ right to educate the child in their respective religions (see, Matter of Bentley v Bentley, 86 AD2d 926, 927).


Albert v Albert, 60 AD3d 979 [2d Dept 2009], lv denied 13 NY3d 701:

The Supreme Court properly awarded the plaintiff sole custody of the parties’ two children. In making a custody determination, the paramount consideration is the best interests of the child ( see Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89). Since the Supreme Court’s determination is largely dependent upon an assessment of the credibility of witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record ( see Allain v Allain, 35 AD3d 513, 513-514. [2006]). Here, the Supreme Court’s determination to award the plaintiff sole custody of the children has a sound and substantial basis in the record, and we see no basis to disturb it.

In addition, contrary to the defendant’s contention, the court providently exercised its discretion in awarding the sum of $181,158 to the plaintiff to reimburse him for attorney’s fees he incurred in connection with an interim hearing on the issue of custody ( see Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881; McCully v McCully, 306 AD2d 329, 329; Brancoveanu v Brancoveanu, 177 AD2d 614).


Costello v Kaier, 278 AD2d 50 [1st Dept 2000]:

Contrary to the view of the Supreme Court, the statement in Mossberg’s letter dated July 7, 1998 that he needed to “review the file in detail in order to ascertain the exact amount” of time he expended on the case did not constitute an admission that he kept no time records throughout the entire representation; indeed, the agreed-upon switch from hourly compensation to a contingency fee may explain any relaxation in the keeping of contemporaneous time records. In any event, failure to maintain contemporaneous time records would not absolutely preclude Mossberg from recovering fees if other means were available to determine the value of his services (see, Matter of Estate of Greenleaf, 256 A.D.2d 179, 180). To whatever extent time records are unavailable, the value of MG’s services may nonetheless be determined based on deposition transcripts and other documents in the file reflecting work by MG.

A hearing is necessary to determine such value, if any. Of course, at such hearing plaintiff is entitled to offer substantiation of his contention that he discharged MG for cause, and that MG is therefore not entitled to any attorney’s fees (see, Campagnola v. Mulholland, 76 N.Y.2d 38, 44). While differences of opinion concerning strategy do not constitute cause for discharging an attorney (see, Morrison Cohen Singer Weinstein v. Zuker, 203 A.D.2d 119), plaintiff has the right to attempt to show that the law firm’s conduct constituted a failure to properly represent his interests rather than the exercise of its strategic judgment.

Finally, although MG’s retaining lien as to the case file apparently has been extinguished by its surrender of the file, the Supreme Court retains jurisdiction, without the need for a plenary action, to determine MG’s entitlement to fees based on its charging lien against any proceeds of this action pursuant to Judiciary Law § 475. It is well established that the charging lien extends to settlement proceeds (see,e.g., LMWT Realty Corp. v. Davis Agency, 85 N.Y.2d 462, 467; Haser v. Haser, 271 A.D.2d 253). Nor is a charging lien precluded due to MG’s failure to expressly assert the charging lien as a basis for its motion. In our view, the branch of MG’s motion seeking a fee award in this action necessarily raised both the retaining lien and the charging lien.


Siskind v Schael, 62 AD3d 805 [2d Dept 2009], lv to app dismissed 13 NY3d 833, lv denied 14 NY3d 708:

On the instant appeals stemming from a highly-contested custody dispute, the mother contends that the attorney for the child may not collect any fees, and must return fees already paid to her. According to the mother, the attorney for the child was removed from further representing the child by order of the Family Court, Nassau County (Phillips, Ct. Atty. Ref.), dated November 19, [*2]2006, upon the ground that she showed bias in favor of the father and against her. However, under the particular facts of this case, we find that the attorney for the child is entitled to fair and reasonable compensation for the period of her representation.

Further, we will not disturb the Family Court’s determination that the mother is responsible for 50% of the fees of the attorney for the child, as computed by the court and set forth in the order dated February 14, 2008. The mother’s repeated refusal to pay her share of these fees will not be countenanced (see Matter of Siskind v Schael, 33 AD3d 806 [2006]), especially where, as here, her own acrimonious conduct and the parties’ charted course contributed to protracted litigation.

Similarly, the mother should not be relieved of her obligation to pay 50% of the forensic evaluators’ fees. The Family Court properly determined, prior to trial, that it was appropriate for the parties to continue to equally share those fees, and the mother failed to demonstrate a sufficient basis for altering that determination.


Word of Life Ministries v Nassau County, 309 AD2d 760 [2d Dept 2003], affd 3 NY3d 455 [2005]

The issue here is whether renewal applications for four properties located in the Village of Freeport, Nassau County, are entitled to tax exemption pursuant to Real Property Tax Law[*2]§ 462. We affirm the order of the Appellate Division holding that the properties are tax exempt.

On September 24, 1999, respondent, Word of Life Ministries, submitted to Nassau County renewal applications for tax exempt status for four properties on the ground that they were used as residences by “officiating clergymen.” The applications mistakenly answered “yes” in response to the question whether the properties were used for purposes other than as residences of “the officiating clergy”stating that they were used as the residences of assistant pastors. Before the tax authorities made a decision, respondent corrected the applications before the County to state that the properties were used as residences for officiating clergymen. After reviewing the applications, Nassau County concluded that the properties were not tax exempt under RPTL 462. Respondent submitted similar applications to the Village of Freeport on July 25, 2000, but the Village rejected respondent’s attempt to correct its mistake. These applications were denied on or about August 15, 2000.{**3 NY3d at 458}

Respondent filed a CPLR article 78 petition against the County on July 17, 2000, and against the Village of Freeport on December 6, 2000. On March 20, 2001, the proceedings were consolidated.

After examinations before trial and a review of documentary evidence, Supreme Court determined that the applications were improperly denied, annulled the county and village decisions and granted the applications. Only the Village appealed to the Appellate Division, which affirmed the determination (Matter of Word of Life Ministries v Nassau County, 309 AD2d 760 [2d Dept 2003]). This Court granted the Village leave to appeal.

RPTL 462 states that “property owned by a religious corporation while actually used by the officiating clergymen thereof for residential purposes shall be exempt from taxation.” At issue here is whether the men living at the four residences in the Village of Freeport are “officiating clergymen.”

The Village asks us to construe the term “officiating clergymen”undefined in the statute[FN] as limited to the “spiritual and settled leader” of a church. In effect, the Village [3]argues that there will frequently be only one officiating clergy person per congregationthe cleric who has ultimate supervisory authority over the other clergy. In the Village’s view, an “assistant pastor,” by virtue of title alone, can rarely constitute officiating clergy within the meaning of the statute.

We decline to read the statute so narrowly. True, “officiating clergymen” does not mean all clergymen. But neither does it mean only one clergy person who presides over subordinates. Rather, we construe “officiating” as looking outward to a cleric’s relationship with his or her congregation, and not to the hierarchical structure of the various clergy persons. Thus, a full-time, ordained member of the clergy who presides over an established church’s ecclesiastical services and ceremonies, conducts weddings and funerals, and administers the sacraments of the churchin short, one who “officiates”is entitled to the statutory tax exemption.

In arguing for a more restrictive definition, the Village points to New Jersey case law, which the Village contends interprets a similar {**3 NY3d at 459}New Jersey statute to limit that state’s parsonage exemption to the “settled leader” of a church (see NJ Stat Ann § 54:4-3.6 [exempting from taxation “the buildings, not exceeding two, actually occupied as a parsonage by the officiating clergymen of any religious corporation”]). In truth, however, New Jersey’s test imposes no such restriction and the Village’s position is based on a misreading of that state’s precedent.

The Village cites Trenton Church of Christ v City of Trenton (3 NJ Tax 267, 274 [1981]) for the proposition that a pastor seeking a parsonage exemption in New Jersey must be the “settled leader” of a church, which the Village takes to mean the supervising cleric. The Village cites several cases in which exemption was denied because the person was not the settled leader: Friends of Ahi Ezer Congregation, Inc. v Long Branch City (16 NJ Tax 591, 597-598 [1997] [rabbi who assisted the settled leader in various functions such as reading from the Torah and conducting religious classes not entitled to exemption]), Shrine of Our Lady of Fatima v Mantua Twp. (12 NJ Tax 392, 395, 399 [1992] [an appointed deacon whose duties included conducting mass twice a month and visiting nursing homes to serve Holy Communion not entitled to an exemption as an officiating clergyman]), and City of Long Branch v Ohel Yaacob Congregation (20 NJ Tax 511, 519 [2003] [visiting pastors not officiating clergymen]).

In St. Matthew’s Lutheran Church for the Deaf v Division of Tax Appeals (18 NJ Super 552, 87 A2d 732 [1952]), the New Jersey Appellate Division granted tax exemption for a [4]building occupied by a minister assigned to conduct worship services for the deaf. The court held that tax exemption could not be granted to the residence of an itinerant preacher but that an officiating clergy person “must be a settled or incumbent pastor . . . installed over a parish, church or congregation” and “must be serving the needs of a reasonably localized and established congregation” (18 NJ Super at 558, 87 A2d at 735). In Congregation Ahavath Torah v Englewood City (21 NJ Tax 318, 320 [2004]), the New Jersey Tax Court, in holding that the residences of a synagogue’s rabbi and cantor both qualified for the parsonage exemption, explained that “it is not status or title, but the services performed that determine if the exemption will apply.” Thus, New Jersey looks, as we do, to the character and “extent of the clergyman’s activities” (Friends of Ahi Ezer Congregation, Inc. v Long Branch City, 16 NJ Tax at 595 [1997]; see also Shrine of Our Lady of Fatima v Mantua Twp., {*3 NY3d at 460}12 NJ Tax 392, 397-398 [1992]). “If the duties sound like those performed by congregational leaders of all religious denominations, the clergyman is considered an officiating clergyman of the religious corporation” (Ahi Ezer, 16 NJ Tax at 595).

Those lower New York courts that have addressed the issue have uniformly applied the correct test. Thus, in Matter of Holy Trinity Orthodox Church of E. Meadow v O’Shea (186 Misc 2d 880 [Sup Ct, Nassau County 2001]), the court held that the church choir director was not an officiating clergyman because, although he was ordained as a subdeacon and cantor within the church, he could not officiate at weddings or funerals and his sole ecclesiastical responsibility was to provide liturgical music for these ceremonies. By contrast, in Temple Beth Sholom, Inc. of Roslyn, N.Y. v Nassau County Dept. of Assessment, Bur. of Exemptions (2001 NY Slip Op 50147[U] [Sup Ct, Nassau County]), an assistant rabbi was held to be officiating clergy where he was employed full time by the synagogue; conducted secondary services on Sabbath and all holidays; taught Sisterhood and Men’s Club classes during the year; supervised youth groups; conducted weddings, funerals, and baby namings when the rabbi was not available; and visited members in hospitals and homes after the death of family members (see also Full Gospel Tabernacle of Long Is., N.Y., Inc. v Board of Assessor of Town of Brookhaven, NYLJ, Jan. 25, 1982, at 15, col 6 [Sup Ct, Suffolk County] [assistant pastor entitled to exemption as officiating clergy]; 5 Ops Counsel SBEA No. 54, at 105 [1976] [suggesting that an officiating clergy is someone ordained who “preach(es) on a regular basis”]).

We therefore conclude that respondent is entitled to a parsonage exemption for each of the challenged properties, declining to hold that the mere designation of one of the pastors here as the “Senior Pastor” means that as a matter of law he and he alone is the “officiating” clergy. All of the pastors, including those living at the residences in question, were ordained and held no outside employment. All took part in church services and shared in the preaching. All provided marital counseling, officiated at marriages and funerals, and [5]administered the sacraments recognized by the church. They also ministered to the youth of the church and took part in outreach to the homeless. Indeed, the pastors ministered to at least 2,000 people weekly. Because the pastors’ salaries are low, respondent provides them with housing, located near the church. We thus reject the Village’s{*3 NY3d at 461} argument that the residents in question are not officiating clergy.

Footnote *: Supreme Court looked for guidance to Religious Corporations Law § 2, which defines the term “clergyman” as “a duly authorized pastor, rector, priest, rabbi, and a person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue.”

The Government Must Now Obtain A Warrant To Compel Disclosure of Cell Phone Location Records


On June 22, 2018, the Supreme Court held, in Carpenter v. United States, that a warrant is required before a wireless telephone service provider may be compelled by a governmental entity to turn over its customer’s “historical” Cell Site Location Information (CSLI). [i]

In 2011, the police arrested four men for a series of armed robberies in Detroit, Michigan. One of them confessed that he had participated in the robbery of nine stores in Michigan and Ohio. He provided cell phone  numbers for some of the other participants, including Timothy Carpenter. Under the Stored Communications Act (SCA), the government obtained orders directing the wireless service providers to turn over records for those cell phone numbers.[ii] The records included cell site location information for the target telephones at call origination and at call termination for incoming and outgoing calls.[iii]  The government intended to use the CSLI to prove that Carpenter was in the vicinity of each of the robberies at the time it was committed. MetroPCS produced records for defendant Carpenter covering a period of 127 days,[iv]  and Sprint produced records for two days, for “roaming” charges that were incurred while Carpenter was driving in Ohio.[v]

Defense counsel moved to suppress, citing U S. v. Jones,[vi] and arguing that before the government may collect such data, the Fourth Amendment requires that it obtain a search warrant, pursuant to a showing of probable cause.  In Jones, the Supreme Court had held that the 4th Amendment was violated when the police recorded the defendant’s movements for twenty-eight days with a GPS tracking device that they had secretly attached to his car.  The District Court in Carpenter rejected defense counsel’s argument, and denied suppression. It held that the government’s collection of cell-site records, created and maintained by defendant’s wireless carrier, was not a “search” within the meaning of the Fourth Amendment.[vii] The “historical” CSLI was admitted into evidence at Carpenter’s trial, and he was convicted of several robberies and related charges.[viii]

The Sixth Circuit Court of Appeals agreed that the collection of CSLI was not a “search,” and it affirmed.[ix]   However, the Supreme Court reversed, holding that the government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment “search,” and that the collection of cell-site data did require a warrant. [x] Citing Katz v. United States,[xi] it explained that the Fourth Amendment protects not only property interests but certain expectations of privacy as well. [xii] In Katz, the Court had held that it was a violation of the 4th Amendment to attach an electronic listening and recording device to the outside of a public telephone booth without a warrant. [xiii] The reasoning was that when an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause. [xiv]

The Supreme Court explained that the digital data at issue in Carpenter – personal location information maintained by a third party – does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One line holds that a person has a reasonable expectation of privacy in his physical location and movements , i.e., Jones [xv] (GPS tracking device on car); and the other  holds that there is no reasonable expectation of privacy in information voluntarily turned over to third parties, e.g., Smith v. Maryland[xvi] (records of dialed telephone numbers held by telephone company) and United States v. Miller[xvii](financial records held by bank).[xviii]

The Court considered the fact that tracking a person’s past movements through CSLI is similar to the GPS monitoring in Jones, in that it is “detailed, encyclopedic, and effortlessly compiled,” but it also implicates the third-party principle of Smith and Miller in that the individual is continuously revealing his location to the wireless carrier. Ultimately, the Court decided not to extend Smith and Miller to cover cell-site records, because of their unique, revealing nature. [xix]

A majority of the Court had previously recognized in Jones that individuals have a reasonable expectation of privacy in the whole of their physical movements, because they can reveal many private details of an individual ‘s life, not unlike the contents of the smart phone in Riley v. California.[xx]  In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring in Jones, because they give the Government near perfect surveillance, and allow it to travel back in time to retrace a person’s whereabouts . The only limit on how far back the government could search is the retention policies of wireless carriers, which for most of them is presently five-years .[xxi]

The Court acknowledged the Government’s contention that CSLI data is less precise than GPS information, but observed that the prosecutor thought the data accurate enough to highlight it during closing arguments in Carpenter’s trial.[xxii] Moreover, the accuracy of CSLI is rapidly approaching GPS-level precision, and whatever rule the Court adopts “must take account of more sophisticated systems that are already in use or in development” (citing Kyllo [xxiii]). [xxiv]  In Kyllo, it was held that use of a thermal imager to detect persons inside a residence was a “search” that required a warrant.[xxv]

The Government had contended that the third-party doctrine governed the case because cell-site records are “business records,” created and maintained by wireless carriers, not unlike the records in Smith and Miller.  But the Court pointed out that Smith and Miller had also considered “the nature of the particular documents sought” and limitations on any “legitimate ‘expectation of privacy’ concerning their contents.” (Miller [xxvi] ).[xxvii]    In the Court’s view, there was “a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers.” [xxviii]

It further stated that the second rationale for the third-party doctrine – voluntary exposure – also does not apply, because cell phone location information is not truly “shared” as the term is normally understood. Cell phones and the services they provide are “such a pervasive and insistent part of daily life” (Riley)[xxix] that carrying one is “indispensable to participation in modem society.” Moreover, a cell phone automatically logs a cell-site record, without the user having done anything beyond turning it on.[xxx]   “Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data.”[xxxi]

The Court concluded that the government’s acquisition of the cell-site records was a “search” within the meaning of the Fourth Amendment , and that the Government was obligated to obtain a warrant supported by probable cause.[xxxii]  “[R]easonable grounds” for believing that records are “relevant and material to an ongoing investigation” (18 U.S.C. §2703[d]), “falls well short of the probable cause required for a warrant.”[xxxiii] Thus, an order obtained under §2703[d] of the SCA is not a permissible mechanism for accessing historical cell-site records.[xxxiv]

Inexplicably, the Supreme Court never mentions in Carpenter that there is another section of the SCA which expressly provides for the collection of communications records through the use of a warrant. (§2703[c][l ][A]). The warrant provision was noted in the concurring opinion in the Circuit Court, which stated that the issue is “not whether the cell-site location information (CSLI) for Carpenter *** could have been obtained under the Stored Communications Act (SCA),” but “whether it should have been sought through provisions of the SCA directing the government to obtain a warrant with a probable cause showing, 18 U.S.C. § 2703(c)(l)(A), or a court order based on the specified ‘reasonable grounds[,]’ id. §§ 2703(c)(l)(B), (d).” [xxxv]

The Supreme Court characterized its holding in Carpenter as “a narrow one,” stating that it does not disturb the application of Smith and Miller, or call into question conventional surveillance techniques and tools, such as security cameras.[xxxvi] It does not address other business records that might incidentally reveal location information; and it does not consider other collection techniques involving foreign affairs or national security.[xxxvii] The opinion also does not address “real-time” cell-site information.[xxxviii]

The opinion leaves open the question of whether a warrant will be required for “short term” CSLI.[xxxix]  As noted above, two days of CSLI were provided by SPRINT, out of the seven days which were requested.[xl]  The Sixth Circuit had previously held, in Skinner,[xli]  that it was not unreasonable for authorities to track the defendant’s cell phone for three days, using its GPS technology, pursuant to a court order which authorized the telephone company to provide such data. It distinguished such “short term” monitoring from the “long term” GPS monitoring in Jones.[xlii]    In Carpenter, the Supreme Court stated that it was “sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.” [xliii] (emphasis supplied). It rejected the suggestion in Justice Kennedy’s dissenting opinion, that it was deciding the “limited period for which the government may obtain an individual’s CSLI free from Fourth scrutiny,”[xliv]

Although the Court states that the Government will generally need a warrant to access CSLI, it acknowledges that case-specific exceptions, such as exigent circumstances, may support a warrantless search.[xlv]   Another recognized exception to the warrant requirement is that the government acted in “good faith” in reliance upon a statute, which may apply even if the statute is subsequently declared unconstitutional.[xlvi]  In the Sixth Circuit, the concurring opinion stated that the authorities had acted in the “good faith” in implementing the Stored Communications Act; and therefore, suppression had been properly denied, even though there had been a Fourth Amendment violation.[xlvii]  If the prosecution asserted the “good faith” exception in the lower Court, suppression could be denied on that alternative ground on remand. 

The  author  is  a former  chairperson  of  the  Nassau County Bar Association’s  Appellate  Practice   Committee.  His Garden City law practice is concentrated on civil and criminal appeals, and complex litigation. (

[i].Carpenter v. United States, 585 U.S. ___ (2018) (slip op., at 19, 21)

[ii].18 U.S.C. § 2703(d);  819 F.3d 880, 884 (6th Cir. 2012).

[iii]. 819 F.3d, at 886.

[iv]. Id.

[v]. Carpenter, slip op., at 3, 11 n 3.

[vi]. 565 U.S. 400, 404 (2012).

[vii]. 819 F.3d at 884.

[viii]. id., at 885.

[ix]. id., at 885, 890, 893.

[x]. Carpenter, slip op., at 11,18-19.

[xi]. 389 U.S. 347.

[xii]. Carpenter, slip op., at 5, 12.

[xiii]. 389 U.S., at 348, 351.

[xiv]. Carpenter, slip op., at 5 (citing Smith v. Maryland, 442 U.S. 735).

[xv]. 565 U.S., at 404.

[xvi]. Smith v. Maryland, 442 U.S. 735 (1979).

[xvii]. 425 U.S. 435 (1976).

[xviii]. Carpenter, slip op., at 7-10.

[xix]. Id., at 10-18.

[xx]. 573 U.S., __ , __ (2014).

[xxi]. Carpenter, slip op., at 13.

[xxii]. id., at 14.

[xxiii]. 533 U.S. 27 (2001).

[xxiv]. Carpenter, slip op., at 14.

[xxv]. Carpenter, slip op., at 12-15 (citing Kyllo, 533 U.S., at 36).

[xxvi]. 425 U.S., at 442.

[xxvii]. Carpenter, slip op., at 16-17.

[xxviii]. id., at 15.

[xxix]. 573 U.S., at __slip op., at 9)

[xxx]. Carpenter, slip op., at 17.

[xxxi]. Id.

[xxxii]. Id.

[xxxiii]. id., at 18.

[xxxiv]. id., at 18-19, 21-22

[xxxv]. 819 F.3d, at 897.

[xxxvi]. Carpenter, slip. op., at 18.

[xxxvii]. id., at 18.

 [xxxviii]. id., at 17.

[xxxix]. id., at 11, n 3.

[xl]. Id.

[xli]. United States v. Skinner, 690 F.3d 772, 774-776 (6th Cir. 2012).

[xlii]. 819 F.3d, at 894-895.

[xliii]. Carpenter, slip op., at 11 n 3.

[xliv]. KENNEDY, J., dissenting (slip op., at 2).

[xlv]. Carpenter, slip op., at 18-22.

[xlvi]. U S. v. Leon, 468 U.S. 897, 905-926 (1984).

[xlvii]. 819 F.3d, at 894-896 (citing US. v. Leon).

A Dismissal Pursuant to 22 NYCRR 202.27 For Failure to Attend a Compliance Conference Is Not a Dismissal on the Merits

“A dismissal pursuant to 22 NYCRR 202.27(b), based upon failure to attend a scheduled conference, is not “on the merits.” (Espinoza v Concordia Internal., 32 AD3d 326 [1st Dept 2006]). After the dismissal of the first action in Espinoza, the plaintiff commenced a new action within the applicable statute of limitations, and it was not barred by the doctrine of res judicata:

“Plaintiff’s first action was dismissed under 22 NYCRR 202.27 (b), which permits the court to dismiss an action upon a plaintiff’s failure to appear at a scheduled conference (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785 [2003]). As defendants correctly note, in order to vacate her default plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (see e.g. Kein v Zeno, 23 AD3d 351 [2005]). However, plaintiff did not seek to vacate her default in the prior action; rather she commenced a new action within the applicable statute of limitations (see Bank of N.Y. v LS Monticello JV, 209 AD2d 464 [1994]). This case represents an instance in which a plaintiff can avoid making the requisite dual showing to vacate a default under section 202.27. * * * A prior order that does not indicate an intention to dismiss the action on the merits is not a basis for the application of the doctrine of res judicata (see Miller Mfg. Co. v Zeiler, 45 NY2d 956 [1978]; Wilson v New York City Hous. Auth., 15 AD3d 572 [2005]; Mudry v Giannattasio, 8 AD3d 455 [2004]). Here, the first action was dismissed as a result of plaintiffs counsel’s failure to attend a compliance conference, not on the merits.”

(id., at 327-328).

The Espinoza court noted that the “dismissal of plaintiffs first action was not without any adverse consequences, as plaintiff was required to purchase a new index number to commence this action. Although this is a relatively insignificant consequence compared to the prospect of being out of court entirely, it is the only one the law presently permits.” (id., at 328).

The First Department has held that where a dismissal is not on the merits, the order or judgment should indicate that the dismissal is “without prejudice.” (emphasis supplied). (Brooks v Harold Haidt, 59 AD3d 233 [1st Dept 2009]; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291 [1st Dept 2006]). In Kalisch, the plaintiff failed to appear at a scheduled conference, and Supreme Court issued an order dismissing the complaint “with prejudice” (emphasis supplied). Since the dismissal was not on the merits, the order was modified on appeal, to state that the dismissal was “without prejudice”:

“Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 15, 2006, which, to the extent appealed from, denied plaintiff’s motion to vacate her default and dismissed the complaint with prejudice, unanimously modified, on the law and the facts, to the extent of directing that the dismissal of the complaint be without prejudice, and otherwise affirmed, without costs.
*               *               *
In order to vacate her default, plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326 [2006]). Assuming, arguendo, that plaintiff demonstrated a reasonable excuse for her failure to appear at a scheduled conference, she wholly failed to establish a meritorious cause of action. No affidavit of merit was annexed to the motion papers. Nevertheless, the adjudication was not for neglect to prosecute and was not on the merits (Greenberg v De Hart, 4 NY2d 511, 516-517 [1958]). Therefore, the dismissal does not have res judicata effect (Espinoza, 32 AD3d at 328). (emphasis supplied).”

The Second Department reached the same result in Farrell Forwarding v Alison Transport, 118 AD2d 891 [2d Dept 2014]:

“After the plaintiff failed to appear at a court-ordered conference, the defendant moved for leave to enter a default judgment and to dismiss the complaint pursuant to 22 NYCRR 202.27(b). In opposition to the motion, the plaintiff failed to establish either a reasonable excuse for the default or a potentially meritorious cause of action. Accordingly, the motion for leave to enter a default judgment and to dismiss the complaint was properly granted (see Aydiner v Grosfillex, Inc., 111 AD3d 589). However, the judgment should have dismissed the complaint without prejudice, since dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291).” (emphasis supplied)

Pursuant to CPLR 205[a], a party whose timely commenced action has been dismissed subsequent to the expiration of the applicable limitations period, may recommence the action, provided that the original dismissal was not predicated upon, inter alia, a voluntary discontinuance, neglect to prosecute or a final judgment on the merits. Campbell v. City of New York, 4 NY3d 200, 209-210 [2005]; Carrick v. Central General Hospital, 51 NY2d 242, 247 [1980]; George v. Mt. Sinai Hospital, 47 NY2d 170, 180-181 [1979]; Montgomery v. Minarcin, 245 AD2d 920, 921 [3d Dept 1997]; see also, Elite Associates, Inc. v. Board of Educ., Longwood Cent. School Dist., 284 AD2d 298, 299 [2d Dept 2001].

Where there is an appeal from the dismissal, the six months provided by CPLR 205(a) begins to run from the date of the affirmance. (Franch. Acquis. Group v Jefferson Val. Mall, 73 AD3d 1123 [2d Dept 2010]). In Franchise Acquisitions, the dismissal pursuant to 22 NYCRR 202.27 (b) was affirmed; and a new action was commenced approximately two months later, which was not barred by res judicata or by the statute of limitations:

“The prior action involving the same parties, which was commenced in the Supreme Court, Westchester County, on January 11, 2006, was dismissed pursuant to 22 NYCRR 202.27 (b) in an order dated October 31, 2007, based on the plaintiffs failure to appear at a scheduled pretrial conference. This Court affirmed the dismissal in a decision and order dated May 13, 2008, finding that the plaintiff failed to set forth a reasonable excuse for its failure to appear at the conference (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 51 AD3d 717 [2008]).

“Contrary to the defendant’s contention, the dismissal of the prior action was upon the plaintiff’s default, and thus did not constitute a determination on the merits (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762 [2010]; Persaud v Pharsi, 70 AD3d 660 [2010]).  * * * Accordingly, the doctrine of res judicata, which bars future actions if a valid final judgment on the merits was rendered in a prior action between the same parties and on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348 [1999]; O‘Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; Matter of Segreto v Grannis, 70 AD3d 704 [2010]), does not apply to bar the instant action (see Djoganopoulos v Polkes, 67 AD3d 726 [2009]; Brooks v Haidt, 59 AD3d 233 [2009]). “

(id., at 1123-1124).