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Case No. 2025 NY Slip Op 25024
Regular Panel Decision
Jan 29, 2025

Matter of W.S. v. G.S.

The petitioner (W.S.) filed a family offense petition against the respondent (G.S.), his sister, alleging harassment in the second degree. W.S. claimed G.S. threatened 'further consequences' and made false statements in a Mental Hygiene Law article 9 petition, leading to W.S.'s arrest. G.S. argued her statements were privileged and made due to genuine fear and concerns about W.S.'s mental health and hoarding. The court held that communications made in support of a Mental Hygiene Law petition are subject to a qualified privilege and serve a 'legitimate purpose' unless made with knowing/reckless disregard of falsity and solely to alarm/annoy. The court found W.S. failed to prove G.S.'s statements met this higher standard or that her other alleged actions constituted harassment. Consequently, the petition was dismissed.

Family OffenseHarassment Second DegreeMental Hygiene Law Article 9Qualified PrivilegeLegitimate Purpose DefenseIntent to HarassBurden of ProofCredibility of WitnessesStatements to PoliceMalice Standard
References
22
Case No. 2018 NY Slip Op 01069 [158 AD3d 703]
Regular Panel Decision
Feb 14, 2018

Matter of Bella S. (Sarah S.)

The case "Matter of Bella S. (Sarah S.)" involves an appeal from a Family Court order that found Sarah S. (mother) neglected her child, Bella S. The Administration for Children's Services had petitioned, alleging the mother's untreated bipolar disorder and other mental illnesses put the child at risk. The Family Court agreed, but the Appellate Division, Second Department, reversed this finding. The Appellate Division concluded that the petitioner failed to prove inadequate treatment or imminent harm, noting the mother's consistent efforts in seeking housing, prenatal care, methadone treatment, and psychiatric medication. Consequently, the petition against the mother was denied, and the proceeding dismissed.

Child NeglectParental RightsMental IllnessBipolar DisorderAdequate TreatmentAppellate ReviewBurden of ProofImminent DangerFamily Court ActKings County
References
8
Case No. MISSING
Regular Panel Decision

Indagro S.A. v. Bauche S.A.

Indagro S.A. initiated a maritime attachment action against Bauche S.A. to recover demurrage payments allegedly due under a fertilizer sale contract. Indagro claimed to have fulfilled its obligations, but Bauche failed to pay demurrage. Indagro obtained an ex parte Rule B Order, resulting in $804,219.90 of Bauche's funds being restrained. Bauche moved to vacate this order, arguing the contract was not maritime in nature and Indagro's claim was merely a contingent indemnity. The court, presided over by Judge Paul G. Gardephe, ruled that Indagro failed to demonstrate a valid prima facie maritime claim, asserting that the sales contract's primary objective was non-maritime, and the "demurrage" provision was likely a contingent indemnity not yet ripe. Consequently, Bauche's motion to vacate was granted, the Rule B Order was vacated, and the verified complaint was dismissed.

Maritime attachmentRule B OrderDemurrageContract disputeAdmiralty jurisdictionSeverable maritime obligationContingent indemnity claimEnglish lawVacatur of attachmentSale of goods
References
52
Case No. 2018 NY Slip Op 07960
Regular Panel Decision
Nov 20, 2018

Matter of Juliette S. v. Tykym S.

This case involves an appeal by Juliette S. against Tykym S. concerning the dismissal of her petition to modify a custody and visitation order. The Family Court in New York County had dismissed the petition without a hearing. The Appellate Division, First Department, reversed this decision, stating that the Family Court erred by dismissing the petition solely based on an 'unfounded' child abuse letter, which was hearsay, and without allowing the mother to respond. The Appellate Division concluded that the mother's allegations of changed circumstances, including the children's expressed fear of the father, were sufficient to warrant a hearing to determine the child's best interests. The matter was remanded back to the Family Court for further proceedings.

Custody modificationvisitation rightschild's best interestsFamily Court proceduredue processhearsay evidencechanged circumstanceschild abuse allegationsparental rightsappellate review
References
3
Case No. 2023 NY Slip Op 06460 [222 AD3d 503]
Regular Panel Decision
Dec 14, 2023

Matter of Jaiyana S. (Perla S.)

The Appellate Division, First Department, affirmed a Family Court order finding that the respondent mother, Perla S., neglected her children, Jaiyana S. and another child, by inflicting excessive corporal punishment. The court found that a preponderance of the evidence supported the neglect finding, relying on the children's consistent out-of-court statements to a child protective specialist detailing repeated physical abuse, including beatings with belts and pinching, which resulted in injuries and their fear of the mother. These statements were cross-corroborated by each other and further supported by the child protective specialist's observation of visible scratch marks on one child. The Appellate Division upheld the Family Court's credibility determinations, rejecting the mother's self-serving testimony and her argument for a missing witness inference.

Child NeglectCorporal PunishmentExcessive ForceChild Protective SpecialistOut-of-Court StatementsCross-CorroborationCredibility DeterminationMissing Witness InferenceFamily CourtAppellate Review
References
7
Case No. MISSING
Regular Panel Decision
Dec 03, 1990

In re Mary S.

This is an appeal from an order terminating a father's parental rights to his daughter, Mary S., on the grounds of permanent neglect. The Family Court found the father failed to make diligent efforts to reunite with Mary, citing non-compliance with court-ordered therapy and housing requirements, despite maintaining contact and visitation. Mary S. had a history of neglect, initially placed in foster care in 1986, and was later found to be mildly retarded, eventually bonding with the foster parents who adopted her brother. The appellate court affirmed the Family Court's decision, rejecting claims of an unfair hearing and improper testimony, emphasizing that the Department of Social Services fulfilled its duty and termination was in Mary's best interest. The decision allowed Mary S. to be freed for adoption by her foster parents.

Permanent NeglectParental Rights TerminationChild NeglectFoster CareAdoptionFamily LawSocial ServicesAppellate DecisionChild WelfareDiligent Efforts
References
4
Case No. MISSING
Regular Panel Decision
Aug 06, 2007

In re G.S.

A nursing home, Split Rock Rehabilitation & Health Care Center, filed a petition for the appointment of a guardian of the property for G.S., an alleged incapacitated person, citing an outstanding debt of over $200,000. G.S.'s son, D.R., held a power of attorney and health care proxy, managing her finances, including the proceeds from the sale of her home. The nursing home alleged D.R. mishandled funds and was uncooperative, seeking to revoke the power of attorney. The court, however, found no clear and convincing evidence of mishandling, and G.S. reaffirmed her trust in her son. The court denied the petition, emphasizing that a guardianship application is not the appropriate avenue for debt collection and that G.S. had a sufficient plan for her affairs through her son.

GuardianshipIncapacitationPower of AttorneyMental Hygiene LawFinancial Mismanagement AllegationNursing Home LitigationDebt CollectionFiduciary ResponsibilityCourt DiscretionElder Law
References
3
Case No. In re U.S. Air Duct Corporation
Regular Panel Decision

Mazur v. U. S. Air Duct Corp. (In Re U. S. Air Duct Corp.)

The case involves the Sheet Metal Workers International Association, Local No. 58 (the Association) seeking to recover fringe benefits and wage supplement contributions from U.S. Air Duct Corporation (the Debtor) and its president, Franklin E. Bean (the Non-Debtor). The Association initiated an action in New York Supreme Court, which was subsequently stayed when the Debtor filed for Chapter 7 bankruptcy. The Non-Debtor removed the state-court proceeding to the Bankruptcy Court, prompting the Association to move for its remand. The Bankruptcy Court denied the Association's motion, asserting jurisdiction over the claim against the Non-Debtor based on its relation to the Title 11 case and the joint and several liability under New York Labor Law Section 198-c. The court also affirmed the permissibility of removal by "any party" under 28 U.S.C. 1478(a).

BankruptcyChapter 7RemovalRemandJurisdictionLabor LawFringe BenefitsWage SupplementsCorporate Officer LiabilityJoint and Several Liability
References
13
Case No. 19-CV-526
Regular Panel Decision

Rauch v. Vale S.A.

This case concerns the consolidation of two putative class action lawsuits, Rauch v. Vale S.A. and Epstein v. Vale S.A., into In re Vale S.A. Securities Litigation. The lawsuits allege violations of securities laws by Vale S.A. and its officers, arising from alleged false and misleading statements regarding dam safety following two catastrophic dam collapses in Brazil. The court granted the motion by the Colleges of Applied Arts and Technology Pension Plan (CAAT) to consolidate the cases, appoint CAAT as Lead Plaintiff, and Kaplan Fox & Kilsheimer LLP as Class Counsel. CAAT was found to have the largest financial interest and satisfied Rule 23 requirements for adequacy and typicality. Other motions for lead plaintiff were withdrawn or denied as moot.

Securities FraudClass ActionConsolidationLead PlaintiffPSLRARule 42 Civil ProcedureRule 23 Civil ProcedureInvestor ProtectionCorporate MisrepresentationDam Collapse Liability
References
30
Case No. MISSING
Regular Panel Decision
Apr 20, 2015

S.B. ex rel. S.B. v. New York City Department of Education

The case involves plaintiffs S.B. (parent) and E.G. challenging an administrative decision regarding E.G.'s Individualized Education Plan (IEP). The plaintiffs sought tuition reimbursement for E.G.'s unilateral placement in a private school after alleging the New York City Department of Education (DOE) failed to provide a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). The district court reviewed the Impartial Hearing Officer's (IHO) and State Review Officer's (SRO) conflicting decisions. The court granted plaintiffs' summary judgment motion on the IDEA claim, finding procedural and substantive IEP violations and that the proposed public school placement was inappropriate. However, the court denied plaintiffs' claims under the Rehabilitation Act, ADA, and 42 U.S.C. § 1983, as no bad faith or gross misjudgment was demonstrated. The defendants' cross-motion was accordingly denied for the IDEA claim and granted for the other claims.

IDEAFAPEIEPTuition ReimbursementSpecial EducationDue Process HearingAdministrative ReviewSummary JudgmentRehabilitation ActADA
References
42
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