Decisions of Interest

Wife Waived Rights, Court Cannot Return Them

Supreme Court, Suffolk County, erred when it vacated a portion of the parties' stipulation of settlement in which the wife waived equitable distribution of her husband's interest in a business, as she had been represented by counsel and was aware that her appraiser's report was not complete at the time of the waiver. Label v. Label, — N.Y.S.2d —-, 2010 WL 552606 (2d Dept. 2/16/10) (Skelos, J.Pl, Covello, Balkin and Austin, JJ.).

Following a wife's divorce filing she sought the help of an expert in appraising the value of her husband's business, which he owned in conjunction with a partner. In January 2007 the expert issued a “preliminary appraisal” estimating the value of the business as of the 2004 filing to be $1,042,890. The expert acknowledged at that time that since discovery was incomplete, he had not been able to evaluate the “intangible value or goodwill” of the business. In August 2007 the parties entered into an oral stipulation of settlement on the record, which, inter alia, awarded the wife the marital residence, durational maintenance, child support, and a cash distributive award of $120,000. It also provided that the wife waived equitable distribution of the husband's ownership interest in his business. In April 2008 the wife discovered that her husband's business partner had offered him $1,820,000 for the husband's share of the business in 2007. She went back to her expert with this new information, and he then appraised the value of the business in 2004 at more than $3.5 million.

On the wife's motion, Supreme Court, Suffolk County, vacated the portion of the stipulation of settlement that provided that the wife waived equitable distribution of her husband's ownership interest in the business. The Appellate Division, Second Department, reversed, finding that the agreement was fair on its face and that there was no evidence of fraud, duress, overreaching, or unconscionability. In particular, the court noted, in accordance with O'Lear v. O'Lear, 235 AD2d 466, that an agreement is not unconscionable “merely because, in retrospect, some of its provisions were improvident or one-sided.” Here, said the court in determining that the agreement should be upheld, “[t]he wife was represented by independent counsel and received meaningful and bargained-for benefits under the agreement, including generous maintenance and equitable distribution, 'based on the financial information made available to the [wife's] independent accountant and legal counsel, who negotiated on [her] behalf over the course of several months.'” (Quoting Rubin v. Rubin, 33 AD3d 983, 984.)

Husband's Agreement to Pay Mortgage Does Not Make Him a Tenant

District Court, Nassau County, New York, First District, dismissed for lack of subject matter jurisdiction an eviction proceeding brought by a wife against her husband because, although he had breached the terms of the divorcing parties' stipulation of settlement by not making mortgage and other payments on the marital home, the stipulation did not create a landlord/tenant relationship. Ward-Evans v. Evans, — N.Y.S.2d —-, 2010 WL 571816 (N.Y.Dist.Ct., 2/18/10) (Fairgrieve, J.).

The parties entered into a stipulation of settlement in June 2008. In it, they agreed that each would pay $600 per month toward their line of credit, which was taken out against the marital home they owned as tenants by the entirety. The stipulation provided that “[i]f either Husband or Wife defaults or fails to pay his or her share of the monthly payment, all monthly default payment amount(s) will be deducted from the Husband's or Wife's share of proceeds when the property is sold.” It further set forth that the husband was to remain in the marital home until it was sold, during which time he was to pay all mortgage payments, maintenance fees, taxes, and insurance payments pertaining to it. If he failed to do these things, the stipulation stated, “the wife shall be at liberty to protect her credit by making any delinquent payment(s). Any payment(s) made by the Wife shall be deducted from the husband's proceeds or entitlements and credited to the wife when the property is sold and same with interest of 9%.”

When the husband failed to live up to the terms of the agreement, the wife attempted to have him ejected from the home through the use of a summary eviction proceeding, in accordance with Real Property Actions and Proceedings Law (RPAPL) ' 711(2). The court dismissed the case finding that, as it was authorized only to adjudicate monetary claims for rent, it lacked jurisdiction. The court concluded that the wife could not “maintain summary proceedings against the [husband], based upon a non-existent agreement to pay rent.”

Children Cannot Sue Foster Parents for Negligent Supervision

The Appellate Division, Second Department, has ruled that foster parents, like biological parents, cannot be sued by their children for negligent supervision. McCabe v. Dutchess County, — N.Y.S.2d —-, 2010 WL 377677 (2d Dept. 2/2/10) (Skelos, J.P., Fisher, Leventhal and Lott, JJ.).

The suit was brought by a biological mother on behalf of her toddler son, who broke his femur after climbing out of his crib. The biological mother had lost custody shortly after giving birth because illicit drugs were found in the baby's system so, at the time of the accident, the child was in the care of a foster mother. Soon after the accident, the child's biological mother regained custody of him, and she brought this suit against the foster mother and the Dutchess Country Department of Social Services seeking damages for his injuries. After failing to persuade the trail court to grant them summary judgment, the defendants appealed.

The Second Department noted that the issue had never been addressed by an appellate court, though one trial court (Supreme Court, Otsego County), had determined that children could indeed initiate negligent supervision actions against their adoptive or foster parents. See Andrews v. County of Ostego, 112 Misc. 2d 37. The Second Department disagreed with the Andrews court, aligning itself instead with the reasoning advanced by the Court of Appeals in Holodook v. Spencer, 36 NY2d 35 (1974), in which that court held that children do not have a right to assert negligent supervision claims against their biological parents, as the possibilities for such claims would be “virtually limitless“ considering that few injuries to children could not have been avoided by closer parental supervision. “As with a parent,“ wrote Justice Plummer E. Lott for the McCabe court, “it would be the 'rare' foster parent who could not conceivably be called to account in the courts for his or her conduct towards his or her foster child if negligent supervision claims against him or her were allowed.“

Dutchess County's motion for summary judgment was also granted, even though a county, unlike a foster parent, can be held liable for its negligent supervision of children in foster care. In the present case, however, there was no evidence to suggest that there were any dangerous conditions in the foster home for which the county could be held liable.

Wife Waived Rights, Court Cannot Return Them

Supreme Court, Suffolk County, erred when it vacated a portion of the parties' stipulation of settlement in which the wife waived equitable distribution of her husband's interest in a business, as she had been represented by counsel and was aware that her appraiser's report was not complete at the time of the waiver. Label v. Label, — N.Y.S.2d —-, 2010 WL 552606 (2d Dept. 2/16/10) (Skelos, J.Pl, Covello, Balkin and Austin, JJ.).

Following a wife's divorce filing she sought the help of an expert in appraising the value of her husband's business, which he owned in conjunction with a partner. In January 2007 the expert issued a “preliminary appraisal” estimating the value of the business as of the 2004 filing to be $1,042,890. The expert acknowledged at that time that since discovery was incomplete, he had not been able to evaluate the “intangible value or goodwill” of the business. In August 2007 the parties entered into an oral stipulation of settlement on the record, which, inter alia, awarded the wife the marital residence, durational maintenance, child support, and a cash distributive award of $120,000. It also provided that the wife waived equitable distribution of the husband's ownership interest in his business. In April 2008 the wife discovered that her husband's business partner had offered him $1,820,000 for the husband's share of the business in 2007. She went back to her expert with this new information, and he then appraised the value of the business in 2004 at more than $3.5 million.

On the wife's motion, Supreme Court, Suffolk County, vacated the portion of the stipulation of settlement that provided that the wife waived equitable distribution of her husband's ownership interest in the business. The Appellate Division, Second Department, reversed, finding that the agreement was fair on its face and that there was no evidence of fraud, duress, overreaching, or unconscionability. In particular, the court noted, in accordance with O'Lear v. O'Lear , 235 AD2d 466, that an agreement is not unconscionable “merely because, in retrospect, some of its provisions were improvident or one-sided.” Here, said the court in determining that the agreement should be upheld, “[t]he wife was represented by independent counsel and received meaningful and bargained-for benefits under the agreement, including generous maintenance and equitable distribution, 'based on the financial information made available to the [wife's] independent accountant and legal counsel, who negotiated on [her] behalf over the course of several months.'” (Quoting Rubin v. Rubin , 33 AD3d 983, 984.)

Husband's Agreement to Pay Mortgage Does Not Make Him a Tenant

District Court, Nassau County, New York, First District, dismissed for lack of subject matter jurisdiction an eviction proceeding brought by a wife against her husband because, although he had breached the terms of the divorcing parties' stipulation of settlement by not making mortgage and other payments on the marital home, the stipulation did not create a landlord/tenant relationship. Ward-Evans v. Evans, — N.Y.S.2d —-, 2010 WL 571816 (N.Y.Dist.Ct., 2/18/10) (Fairgrieve, J.).

The parties entered into a stipulation of settlement in June 2008. In it, they agreed that each would pay $600 per month toward their line of credit, which was taken out against the marital home they owned as tenants by the entirety. The stipulation provided that “[i]f either Husband or Wife defaults or fails to pay his or her share of the monthly payment, all monthly default payment amount(s) will be deducted from the Husband's or Wife's share of proceeds when the property is sold.” It further set forth that the husband was to remain in the marital home until it was sold, during which time he was to pay all mortgage payments, maintenance fees, taxes, and insurance payments pertaining to it. If he failed to do these things, the stipulation stated, “the wife shall be at liberty to protect her credit by making any delinquent payment(s). Any payment(s) made by the Wife shall be deducted from the husband's proceeds or entitlements and credited to the wife when the property is sold and same with interest of 9%.”

When the husband failed to live up to the terms of the agreement, the wife attempted to have him ejected from the home through the use of a summary eviction proceeding, in accordance with Real Property Actions and Proceedings Law (RPAPL) ' 711(2). The court dismissed the case finding that, as it was authorized only to adjudicate monetary claims for rent, it lacked jurisdiction. The court concluded that the wife could not “maintain summary proceedings against the [husband], based upon a non-existent agreement to pay rent.”

Children Cannot Sue Foster Parents for Negligent Supervision

The Appellate Division, Second Department, has ruled that foster parents, like biological parents, cannot be sued by their children for negligent supervision. McCabe v. Dutchess County, — N.Y.S.2d —-, 2010 WL 377677 (2d Dept. 2/2/10) (Skelos, J.P., Fisher, Leventhal and Lott, JJ.).

The suit was brought by a biological mother on behalf of her toddler son, who broke his femur after climbing out of his crib. The biological mother had lost custody shortly after giving birth because illicit drugs were found in the baby's system so, at the time of the accident, the child was in the care of a foster mother. Soon after the accident, the child's biological mother regained custody of him, and she brought this suit against the foster mother and the Dutchess Country Department of Social Services seeking damages for his injuries. After failing to persuade the trail court to grant them summary judgment, the defendants appealed.

The Second Department noted that the issue had never been addressed by an appellate court, though one trial court (Supreme Court, Otsego County), had determined that children could indeed initiate negligent supervision actions against their adoptive or foster parents. See Andrews v. County of Ostego , 112 Misc. 2d 37. The Second Department disagreed with the Andrews court, aligning itself instead with the reasoning advanced by the Court of Appeals in Holodook v. Spencer , 36 NY2d 35 (1974), in which that court held that children do not have a right to assert negligent supervision claims against their biological parents, as the possibilities for such claims would be “ virtually limitless “ considering that few injuries to children could not have been avoided by closer parental supervision. “ As with a parent, “ wrote Justice Plummer E. Lott for the McCabe court, “ it would be the ' rare ' foster parent who could not conceivably be called to account in the courts for his or her conduct towards his or her foster child if negligent supervision claims against him or her were allowed. “

Dutchess County's motion for summary judgment was also granted, even though a county, unlike a foster parent, can be held liable for its negligent supervision of children in foster care. In the present case, however, there was no evidence to suggest that there were any dangerous conditions in the foster home for which the county could be held liable.