Appellate Division, Third Department Case Summaries: January 28, 2008

Appellate Division, Third Department

Child Support Modification

Zwickel v. Szajer

503161

Appealed from Greene County

Family Court

Issue: Is modification of a previous child support order appropriate when the plaintiff alleges the children’s educational needs are not being met and, therefore, they require private education?

Background: In an action for divorce, the issue of child support was referred to Family Court. A previous support order from 2003 was in effect. The plaintiff claimed the children’s educational needs were not being met and wanted a modification in child support to fund private education.

Ruling: Submitting only a dearth of evidence that the children needed to attend private school for special educational needs, the plaintiff did not demonstrate a substantial change of circumstances to merit an upward modification of the previous support order.

Stephen L. Molinsek of Friedman & Molinsek PC for the petitioner, and Daniel S. Cohen of Cohen & Cohen LLP for the respondent

Unemployment

Absenteeism

Orzelek v. Commissioner of Labor

502353

Appealed from the Unemployment Insurance Appeal Board

Issue: Does recurrent absenteeism and tardiness qualify as an inability to meet standards for the purposes of claiming unemployment benefits?

Background: The appellant seeks reversal of a denial of benefits that was based on the grounds his absenteeism qualified as misconduct and disqualified him for unemployment benefits.

Ruling: Continuous absenteeism despite previous warnings can constitute disqualifying misconduct. The board’s denial is affirmed.

Fritz J. Orzelek, pro se, appellant, and Bessie Bazile, office of the Attorney General, for the respondent

Sentencing

Plea Offer — Appeal

People v. Brooks-Singh

100286

Appealed from Supreme Court,

Albany County

Issue: Does the trial court’s withdrawal of a plea warrant review by the Appellate Division when no constitutional issue is raised and the subsequent sentence is reasonable?

Background: Charges of contempt and attempted assault resulted from an attempt to choke the victim and violate an order of protection. The trial court withdrew its plea offer, which remained unaccepted, and instituted a lengthier sentence than originally contemplated. The defendant appealed on the grounds that the court erred in withdrawing the offer.

Ruling: The defendant’s subsequent guilty plea forfeited his right to appellate review as the issue is not jurisdictional or of a constitutional dimension. Even if it were to be decided on the merits, the defendant’s history of abusive behavior does not warrant a sentence reduction.

Teresa M. Suozzi, assistant public defender, for the appellant, and Brett M. Knowles, assistant district attorney, for the respondent

Real Estate

Listing Agreement — Privity

Valdina v. Martin

503204

Appealed from Supreme Court,

Columbia County

Issue: May a real estate agent sue a non-performing seller when the listing agreement was with the agency?

Background: The defendant signed an exclusive right-to-sell listing agreement with the plaintiff real estate agent. After finding a buyer, executing a contract and securing a deposit, the defendant decided not to sell the home and returned the deposit. The agent seeks recovery of the lost commission.

Ruling: The court rules the defendant’s listing agreement was with the agency, not with the plaintiff individually, therefore no privity of contract existed to allow recovery.

John F. Maxwell of Maxwell & Van Ryn for the plaintiff, and James Kleinbaum for the defendant

Parole

Revocation

Rogers v. Dennison

502641

Appealed from the New York Board of Parole

Issue: Is a revocation of parole appropriate when the post- release criminal charges were inappropriate based on the petitioner’s actual behavior?

Background: The petitioner’s parole terms included admonishment not to engage in behavior punishable by imprisonment, or that otherwise endangers the welfare of others. He was arrested for an altercation that, although it did not lead to a conviction for a serious offense, did lead to a proceeding that revoked parole.

Ruling: The petitioner’s behavior endangered the well-being of others, therefore the revocation was appropriate as it was supported by sufficient evidence.

Kerry Elgarten of The Legal Aid Society for the petitioner, and Andrea Oser, office of the attorney general, for the respondent

Originally published by Daily Record Staff & Wire Reports.

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