modification rule in New York

2014The mother’s argument that Family Court erred in relying on certain findings contained in the order following the violation hearings is not properly before us, as she neither appealed from that final order nor objected at the modification hearing when the court stated that it was taking judicial notice of the prior violation proceedings and testimony (see Matter of Lagano v Soule, 86 AD3d 665 , 667 n 5 [2011]; Matter of Benjamin v Benjamin, 48 AD3d 912, 914 [2008]).

2014The mother’s argument that Family Court erred in relying on certain findings contained in the order following the violation hearings is not properly before us, as she neither appealed from that final order nor objected at the modification hearing when the court stated that it was taking judicial notice of the prior violation proceedings and testimony (see Matter of Lagano v Soule, 86 AD3d 665 , 667 n 5 [2011]; Matter of Benjamin v Benjamin, 48 AD3d 912, 914 [2008]).

2003The plaintiffs’ attempt to invoke the exception to the subsequent modification defense, i.e., that a manufacturer may be held liable under a design defect theory where the product is “purposefully manufactured to permit its use without the safety guard” is unpersuasive (Lopez v Precision Papers, 67 NY2d 871, 873 [1986], affg 107 AD2d 667 [1985]).

1990The plaintiffs’ attempt to invoke the exception to the subsequent modification defense, i.e., that a manufacturer may be held liable under a design defect theory where the product is purposefully manufactured so as to permit its use without a certain safety feature which was designed to be removable (see, Lopez v Precision Papers, 107 AD2d 667 , affd 67 NY2d 871 ; Darsan v Guncalito Corp., 153 AD2d 868, 870 ), is unpersuasive.

1957Such was not the result, however, for that decision was unanimously affirmed ( 162 N. Y. 1 ), and on review of the authorities the doctrine was reiterated. “ The rule, however, does not extend to a will properly executed and which has been rendered inoperative by law, as by marriage of a woman (Brown v. Clark, 77 N. Y. 369 ), or to one which was executed while the testator was of unsound mind or under restraint.

1906Such was not the result, however, for that decision-was unanimously affirmed ( 162 N. Y. 1 ), and on review of the authorities the doctrine was reiterated.

1957(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O’Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the expressed hope that the Court of Appeals might be attracted to a renewed consideration of the question and a modification of the rule.

1906(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O'Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the ' expressed hope that the Court of Appeals might be attracted to a renewed, consideration of the question and a modification of the rule.

1957(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O’Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the expressed hope that the Court of Appeals might be attracted to a renewed consideration of the question and a modification of the rule.

1906(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O'Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the ' expressed hope that the Court of Appeals might be attracted to a renewed, consideration of the question and a modification of the rule.

1957(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O’Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the expressed hope that the Court of Appeals might be attracted to a renewed consideration of the question and a modification of the rule.

1906(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O'Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the ' expressed hope that the Court of Appeals might be attracted to a renewed, consideration of the question and a modification of the rule.

1957(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O’Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the expressed hope that the Court of Appeals might be attracted to a renewed consideration of the question and a modification of the rule.

1906(Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O'Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews ( 43 App. Div. 394 ) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the ' expressed hope that the Court of Appeals might be attracted to a renewed, consideration of the question and a modification of the rule.

1916In Pettit v. Pettit, 149 App. Div. 485, 488 , the court said: “Upon the question of whether the testator had testamentary capacity at the time the will was executed it may be, under the doctrine of McDonald v. Metropolitan St.

1916In Pettit v. Pettit, 149 App. Div. 485, 488 , the court said: “ Upon the question of Avhether the testator had testamentary capacity at the time the will was executed it may be, under the doctrine of McDonald v. Metropolitan St.

1898Co. v. Hoyt ( 149 U. S. 1 ), to which the attention of the court has been invited, the syllabus would seem to indicate a modification of the doctrine so uniformly upheld by the State courts, but a careful reading of the case shows that this is riot intended, and that the case, instead of sustaining the theory of a modification of the rule in respect to a substantial compliance, is decided squarely upon the ground that the contract had been fully complied with, and that the court below was in error in having placed a forced and unnatural construction upon the covenant.

1898Co. v. Hoyt ( 149 U. S. 1 ), to which the attention of the court has been invited, the syllabus would seem to indicate a modification of the doctrine so uniformly upheld by the State courts, but a careful reading of the case shows that this is riot intended, and that the case, instead of sustaining the theory of a modification of the rule in respect to a substantial compliance, is decided squarely upon the ground that the contract had been fully complied with, and that the court below was in error in having placed a forced and unnatural construction upon the covenant.

2024Footnote 9: People v Oddo , 19 NY2d 979 (1967).

2024Footnote 7: At the modification hearing, counsel explained that Mr. Shader recalled being caught "attempting to take something off of a[n] . . . abandoned car." Footnote 8: People v Smith , 23 NY2d 955 (1969).

2021Therefore, the mother's motion to vacate the June 2019 custody and visitation order and the June 2019 order of protection is granted and the matter is remitted to Family Court for an evidentiary hearing on the father's modification and violation petitions ( see Matter of Melissa F. v Raymond E. , 193 AD3d at 1127 ).

2019Where a sufficient basis for conducting a modification hearing has been presented, the hearing itself is generally limited to events occurring after the conclusion of the last hearing or proceeding ( see Matter of Hugee v Gadsden , _____ AD3d _____, 2019 NY Slip Op 03596 ; Matter of DiCiacco v DiCiacco , 89 AD3d 937 ).

2019As the gravamen of the modification and violation petition is the father's assertions that the mother has willfully denied him access to the child, the evidence required to resolve the pending litigation is located primarily in New York, where the majority of his access takes place ( see Matter of Mojica v Denson , 120 AD3d at 693 ; Matter of Belcher v Lawrence , 98 AD3d 197, 202 ), and any testimony by the mother or the child, or any other witnesses located in Connecticut, could be presented "by telephone, audiovisual means, or other electronic means" (Domestic Relations Law § 75-j[2]; see Do

2019Where a sufficient basis for conducting a modification hearing has been presented, the hearing itself is generally limited to events occurring after the conclusion of the last hearing or proceeding ( see Matter of Hugee v Gadsden , _____ AD3d _____, 2019 NY Slip Op 03596 ; Matter of DiCiacco v DiCiacco , 89 AD3d 937 ).

2019As the gravamen of the modification and violation petition is the father's assertions that the mother has willfully denied him access to the child, the evidence required to resolve the pending litigation is located primarily in New York, where the majority of his access takes place ( see Matter of Mojica v Denson , 120 AD3d at 693 ; Matter of Belcher v Lawrence , 98 AD3d 197, 202 ), and any testimony by the mother or the child, or any other witnesses located in Connecticut, could be presented "by telephone, audiovisual means, or other electronic means" (Domestic Relations Law § 75-j[2]; see Do

2019As the gravamen of the modification and violation petition is the father's assertions that the mother has willfully denied him access to the child, the evidence required to resolve the pending litigation is located primarily in New York, where the majority of his access takes place ( see Matter of Mojica v Denson , 120 AD3d at 693 ; Matter of Belcher v Lawrence , 98 AD3d 197, 202 ), and any testimony by the mother or the child, or any other witnesses located in Connecticut, could be presented "by telephone, audiovisual means, or other electronic means" (Domestic Relations Law § 75-j[2]; see Do

2015Contrary to the contention of the mother and the Attorney for the Children, we conclude that Family Court’s best interests determination is supported by a sound and substantial basis in the record and that the court properly considered the appropriate factors in awarding sole custody to the father (see Matter of Tarrant v Ostrowski, 96 AD3d 1580 , 1582 [2012], lv denied 20 NY3d 855 [2013]; see generally Fox v Fox, 177 AD2d 209, 210 [1992]). “ Tt is well settled . . . that [a] concerted effort by one parent to interfere with the other parent’s contact with the child [ren] is so inimical to the