Latest decisions from the Appellate Division, Second Department

April 30, 2024 Robert Abruzzese, Courthouse Editor

Out of the Appellate Division, Second Department earlier in April were these cases: a corporate officer was shielded from personal liability in a real estate breach of contract, emotional distress damages were reduced in a medical malpractice case, a decision to keep a child with foster parents over a biological sibling was affirmed, and a termination of parental rights due to neglect and abandonment was upheld. Brooklyn Eagle photo by Rob Abruzzese

Corporate officer shielded from personal liability in real estate breach of contract

On April 10, the Appellate Division, Second Department, partially reversed a 2019 decision from the Kings County Supreme Court in a complex case involving the Brighton Tower II Condominium and its developer, Brighton Builder, LLC. Initiated in 2016, the lawsuit stemmed from post-Hurricane Sandy damages to a Brighton Beach condominium, with allegations including breach of contract, breach of fiduciary duty, and conversion against the developer and its manager, Leon Mikhlin.

The original court decision had rejected a motion to dismiss the breach of contract charges against Mikhlin. It noted that Mikhlin signed the relevant documents solely as an authorized signatory of Brighton Builder, LLC, and not in a personal capacity. Under corporate law, this distinction is crucial because an individual who signs documents on behalf of a corporation typically does not assume personal liability unless specific legal exceptions apply, such as fraudulent behavior or a piercing of the corporate veil. The appellate court found no evidence that Mikhlin engaged in personal misconduct or abused the corporate structure in a manner that would necessitate holding him personally liable for the corporation’s actions.

However, the appellate court upheld the lower court’s decisions regarding the fiduciary duty and conversion claims, noting that these were timely filed after Mikhlin’s term as condominium board president ended in 2015.

Court reduces emotional distress damages in medical malpractice case

In a decision issued on April 10, the Appellate Division, Second Department, modified a 2019 Kings County Supreme Court decision in a medical malpractice lawsuit involving Dorian Opal Wilson and Dr. Seth Finkelstein. The case, initiated in 2016, stemmed from a claim that improper medical treatment led to the plaintiff’s unnecessary emotional and physical suffering.

The lawsuit centered on an incident where Wilson was treated with methotrexate based on a misdiagnosis of an ectopic pregnancy, which later proved to be a viable intrauterine pregnancy. This led to a recommended termination of the pregnancy due to the risks associated with the drug. The jury originally awarded Wilson $1,500,000 in damages, including $1,250,000 for emotional distress.

The Supreme Court, under Justice Genine Edwards, denied Finkelstein’s motion to set aside this verdict. However, upon review, the Appellate Division upheld the finding of liability but found the $1,250,000 award for emotional distress excessive. The court has since reduced this amount to $700,000 unless further contested and affirmed the remaining aspects of the judgment.

AD affirms decision to keep child with foster parents over biological sibling

The Appellate Division, Second Department, issued a decision on a Family Court’s ruling denying a custody petition in Kings County has been affirmed. The case was presided over by Family Court Judge Melody Glover and reviewed by the Appellate Division panel, including Justices Angela Iannacci, Paul Wooten, Lara Genovesi and Deborah Dowling, with a decision issued on April 10.

Audrey B., the petitioner, sought custody of a child who is the half-sibling of three children currently under her care. The child in question had been living with foster parents since February 2018, when he was about 18 months old, and these foster parents are seeking to adopt him.

In family law, the court’s primary concern in custody cases is the best interests of the child, considering the totality of circumstances. While there is a general preference in law for keeping siblings together, this preference is not absolute and can be overridden by the specific needs and best interests of the child involved.

The Family Court concluded that the child’s continued residence with his foster parents, who have provided care since his early childhood and are planning to adopt him, was in his best interest. This decision was deemed to have a sound and substantial basis in the record, reflecting a careful evaluation of the child’s current and potential future stability.

The Appellate Division, in affirming this decision, supported the lower court’s judgment that the emotional and developmental benefits of remaining in a stable, nurturing environment with the foster parents outweigh the benefits of uniting the child with his half-siblings, with whom he has never lived.

Appellate Court upholds termination of parental rights due to neglect and abandonment

In a ruling issued on April 10, 2024, the Appellate Division, Second Department, affirmed a decision by the Family Court of Kings County to terminate a mother’s parental rights over her child on the grounds of abandonment and permanent neglect.

The proceedings, which began in January 2020 under Social Services Law § 384-b, culminated in a November 2022 decision by Judge Melody Glover. The Family Court found that the mother had not maintained contact with the child since his placement in foster care in February 2018, thus constituting abandonment. The court also determined that the mother had permanently neglected the child by failing to engage with services provided to repair and maintain her parental relationship.

The Appellate Division’s review confirmed that the petitioner, Children’s Aid, presented clear and convincing evidence of both abandonment and permanent neglect. Despite the agency’s efforts to facilitate the mother’s compliance with a service plan designed to reunite her with the child, her sporadic and minimal efforts were deemed insufficient.