Vicious Propensitites in Domestic Animals by Hon. George M. Heymann Continued

In recent weeks there were two Appellate Division decisions that dealt with the issue of whether the plaintiffs, who sustained injuries caused by dogs, could recover damages on the theory of negligence.

This article will discuss these two decisions, Bloom v. Lenten, [AD 3rd Dept.] 21 and Doerr v. Goldsmith, [AD 1st Dept.] 22 as well as highlight the leading Court of Appeals cases that the lower courts relied on pertaining to injuries caused by domestic animals.23

In Bloom, the plaintiff was a photographer and the defendants had a dog breeding business at their home. In 2007, plaintiff went to defendants’ home to photograph puppies of their English Labrador retriever, including a puppy named Delilah. Approximately three years later, the plaintiff again went to defendants’ home to photograph new puppies. While in the backyard on her second visit that year, three full grown dogs were running around playing and chasing after Delilah, who had now grown substantially and weighed about 50 pounds. As she was being chased, Delilah “ran into the back of plaintiff’s leg, knocking her forward and onto the ground” causing plaintiff to sustain serious injuries.

The Supreme Court granted defendants’ motion for summary judgment dismissal as to the negligence claim but not as to the strict liability claim finding questions of fact as to whether Delilah had vicious propensities of which the defendants would be aware of.

On appeal, the Appellate Division, Third Department, modified by finding that the defendants “conclusively demonstrated that they lacked knowledge of a vicious propensity on Delilah’s part, entitling them to summary dismissing the complaint.” Citing Collier v. Zambito24 the court held that “a vicious propensity does not necessarily have to be ‘dangerous or ferocious’ but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long as ‘such proclivity results in the injury giving rise to the lawsuit’.”25 Thus, the conduct of Delilah running into the plaintiff while being “playfully chased” by the other dogs was nothing more the “normal canine behavior that does not amount to vicious propensity (see Hamlin v. Sullivan, 93 AD3d [1013] at 1015; Bloomer v. Shauger, 94 AD3d 1273, 1274, affd ___ NY3d___, 2013 NY Slip Op 03121).”

In similar fashion, the Appellate Division, First Department, in Doerr, held that where a bicycle rider collided with a dog that ran into his path, causing him to fall off his bike and sustain injuries, the plaintiff could not sue the dog’s owner for negligence.

Here, the plaintiff was riding on a path in Central Park when he observed the defendant Goldsmith holding the dog in question on one side of the path and the defendant Smith on the other side clapping her hands as a signal to the dog, which belonged to her, to come to her. In anticipation of what might occur, “plaintiff screamed out, ‘Watch your dog’.” Unable to avoid hitting the dog, plaintiff was “propelled” from his bike. The plaintiff argued that this was a case of negligence based on the conduct of the defendants and not one caused by the “vicious propensities” of the animal.

The Supreme Court, N.Y. County, denied the defendant Smith’s motion for summary judgment dismissing the complaint and the Appellate Division reversed.

The appellate court held that: “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal ( )26. Rather, when harm is caused by a domestic animal, its owner can be held liable if he knew, or should have known, of the animal’s vicious propensities (Petrone v. Fernandez, 12 NY3d 546 at 550; Collier v. Zambito, [supra] at 446; see also Bard v. Jahnke, 6 NY3d 592 at 596-597, 599). The term ‘vicious propensities’ includes ‘the propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ (Collier v. Zambito, [supra] at 446). Here, there was no evidence that the defendant had knowledge that her dog had a propensity to interfere with traffic, and her motion for summary judgment should have been granted (see Smith v. Reilly, 17 NY3d 895).”

Despite a vigorous dissent, the majority went on to state that “[h]ere, the accident occurred when defendant’s dog collided with plaintiff, and defendant’s alleged negligence in calling the dog does not provide a basis to depart from the strict liability rule recognized by the Court of Appeals in Petrone, Bard and Collier (see Bloomer v. Shauger, [supra at]1274 [3d Dept 2012] [‘Although… defendant’s conduct on the day in question indeed may have evidenced some negligence on her part…, the Court of Appeals has made its position clear…; therefore, we are constrained to view this matter solely in the context of strict liability’]…).” (Emphasis added)

COURT OF APPEALS CASES

In Collier v. Zambito the plaintiff child was playing at the defendants’ house with their son and other children. Their dog was always confined to the kitchen behind a gate but would bark when visitors were in the house. When plaintiff came downstairs to use the bathroom, defendant Mary Zambito had the dog on a leash and encouraged the plaintiff to approach the dog. As he did, the dog lunged and bit him in the face. “There was no dispute that the dog’s attack was unprovoked” and that it “had never previously threatened or bitten anyone.”

Defendants sought summary judgment dismissal of the suit because plaintiff did not demonstrate that the dog had vicious propensities or that the defendants knew or should have known of such vicious propensities. Plaintiff cross-moved for summary judgment for liability. The Supreme Court denied both motions finding issues of fact as to the defendants’ knowledge of the dog’s vicious propensities since they kept it confined to the kitchen behind a gate when visitors came to the house due to the constant barking.

The Appellate Division reversed, on the law, finding that plaintiff failed to show that defendants were aware or should have been aware of the dog’s vicious propensities. The court found that there was no evidence that the dog had vicious propensities of the type that resulted in the plaintiff’s injury.  Two justices dissented.  The Court of Appeals affirmed the reversal.
“[T]he owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities ( ). Vicious propensities include the ‘propensity to do any act that might endanger the safety of persons and property of others in a given situation’ ( ). Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice ( ). In addition, a triable issue of fact as to the knowledge of a dog’s vicious propensities might be raised ‘even in the absence of proof that the dog had actually bitten someone’ by evidence that it had been known to growl, snap or bare its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained ( ).  *** [Behavior that] reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities albeit only when such proclivity results in the injury giving rise to the lawsuit.  But nothing in our case law suggests that the mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is sufficient to raise a triable issue of fact as to whether it had vicious propensities.”

In Collier, there was no evidence that the dog’s behavior was ever “threatening or menacing. Indeed, the dog’s actions ‘barking and running around’ are consistent with normal canine behavior. Barking and running around are what dogs do.”

In a dissenting opinion, Judge G. B. Smith pointed out that “of course dogs run around and bark.” The fact that defendants’ dog had never actually bitten or threatened anyone should not be dispositive, where, as in this case, the dog was never given an opportunity to do so.  *** Regardless that the defendant may have meant well by inviting the plaintiff to approach the dog, “a jury could reasonably conclude that it was ill-considered in light of the attendant risk of injury.”

Bard v. Jahnke gave the Court of Appeals an opportunity to have a “bull” session. In this case, the bull was named “Fred.”  Fred was roaming freely on the defendants’ property in an area referred to as a “low cow district” housing about 130 cows in order to impregnate those cows who failed to conceive by artificial insemination. Plaintiff was there to do some repair work in the dairy barn at the request of another self-employed carpenter and was injured when Fred charged him and slammed him into the pipes in the stall.

The Supreme Court granted the defendants’ summary judgment motions for dismissal because Janke did not know that the plaintiff would be working in his barn that day and the co-carpenter did not know of the bull’s presence in the barn.  The Appellate Division affirmed but on the grounds enunciated in Collier that Jahnke could not be liable for plaintiff’s injuries unless he knew or should have known of the bull’s vicious or violent propensities. The court further found that there was “competent” evidence to establish that prior to the accident Fred “had never injured another person or animal or behaved in a hostile or threatening manner.”

The Court of Appeals affirmed, re-stating its “long-standing rule” regarding “known or should have known of an animal’s vicious propensities” as set forth in Collier. Fred had never attacked any farm animal or human being before this incident. Thus, Bard could not “recover under the traditional rule. *** In sum, when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier.” The Court rejected plaintiff’s argument that the defendant is liable under common-law negligence as stated in section 518 of the Restatement (Second) of Torts which “provides generally that the owner of a domestic animal, which the owner does not know or have reason to know to be abnormally dangerous, is nonetheless liable if he intentionally causes the animal to do harm, or is negligent in failing to prevent harm.”

Addressing the Court’s failure to adopt the view of the Restatement, Judge R. S. Smith, in his dissent, strongly asserted that “[t]his Court today becomes the first state court of last resort to reject the Restatement rule. I think it is a mistake. It leaves New York with an archaic, rigid rule, contrary to fairness and common sense that will probably be eroded by ad hoc exceptions. *** No opinion of our Court before today announced the rule, now adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face ‘that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned. *** The rule the majority adopts is contrary to simple fairness. Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or a bull?”  Judge Smith then cited a few examples where, in his opinion, future cases “will put the rule adopted by the majority under strain.”

As reflected in subsequent cases, Judge Smith’s dissent in Bard v. Jahnke has struck a chord with other jurists in the various courts.

In Petrone v. Fernandez, the plaintiff, a mail carrier, was chased by the defendant’s Rottweiler who was lying unleashed on the unfenced front lawn of defendant’s house.  As soon as plaintiff noticed the dog, while approaching the house, she immediately turned away and began to return to her car. The dog began to run in her direction and she then ran the remaining distance to the car and attempted to jump through the open window on the driver’s side, sustaining injuries. Ironically, the dog did not bark, bite, threaten or come in contact with the plaintiff as she tried to extricate herself from her state of “panic” that the dog was about to attack her.

Plaintiff sued on the theory of defendant’s knowledge of his dog’s prior vicious propensities and for negligence of the local leash law that required the defendant to keep his dog leashed “in any open or unfenced area abutting on a public place.”27

The Supreme Court dismissed the complaint against the defendant because there was no showing that the defendant had knowledge of the dog having any vicious propensities or behavior demonstrating a proclivity to act in any way to harm others and “the mere fact that the dog was unrestrained at the time of the subject incident [does] not raise a triable issue of fact as liability cannot be premised solely on the fact that the defendant … left the dog unrestrained.”

The Appellate Division held that there was a cause of action for the leash law, as well as the dog’s behavior notwithstanding that there was no prior display of vicious propensities and deleted those provisions of the Supreme Court’s order dismissing the cause of action for negligence.

The Court of Appeals reversed stating: “ ‘[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier’ (Bard v. Jahnke, [supra][emphasis added by Court]) – i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities. *** Here, defendant’s violation of the local leash law is ‘irrelevant because such a violation is only some sort of evidence of negligence, and negligence is no longer a basis for imposing liability’ after Collier and Bard.” ( )

In a separate concurring opinion, Judge Pigott noted that had he sat in the Bard case he would not have joined the majority’s opinion. However, “on constraint” of that decision he concurred in this case. “In my view, and for the reasons stated in Judge R. S. Smith’s dissent in Bard ( ), it was wrong to reject negligence altogether as a basis for the liability of an animal owner. ‘[N]egligence by an owner, even without knowledge concerning a domestic animal’s [vicious] propensity, may create liability’ ( ).”

Smith v. Reilly also involved a collision between a cyclist and a dog. In a memorandum opinion, the Court of Appeals held: “Defendant’s submissions establish that she had no knowledge of her dog’s alleged propensity to interfere with traffic. Defendant testified that the dog had never before chased cars, bicycles or pedestrians or otherwise interfered with traffic. Testimony that the dog, on three to five occasions, escaped defendant’s control, barked, and ran towards the road is insufficient to establish a triable issue of material fact (see Collier v. Zambito, [supra]).”

Hamlin v. Sullivan, cited by the Appellate Division, Third Department, in Bloom, is similar to that case in that the plaintiff was injured when defendant’s dog, running freely in a park area designated for that purpose, ran into the plaintiff causing her to fall. On appeal, the Supreme Court’s denial of defendant’s motion for summary judgment dismissal was reversed. Citing, inter alia, Smith, Collier and Bard, the court opined that “[i]nasmuch as the behavior of which defendant admittedly had notice –jumping on people- was not the behavior that resulted in plaintiff’s injury, and plaintiff failed to produce any evidence that defendant had notice of a proclivity by [the dog] to run into people and knock them over, plaintiff failed to raise a question of fact to preclude summary judgment ( ).”28 The Appellate Division concluded that running around in a dog park where dogs are supposed to run around was “typical canine behavior” and insufficient to establish “vicious propensities.”

Bloomer v. Shauger, cited in both Bloom and Doerr, involved a horse who was “spooked” when its owner approached the horse with a “lead line” causing the horse to suddenly pull its head back which was resting on plaintiff’s shoulder. Plaintiff was injured when the middle finger of his left hand got caught in one of the rings in the horse’s metal halter which he had been holding.

Here, again, the appellate court, in affirming the trial court’s granting of defendant’s summary judgment motion for dismissal was “constrained to view this matter solely in the context of strict liability” citing Petrone, Bard and Collier. The court pointed out its recently expressed “discomfort” in New York’s failure to recognize a common law negligence to recover for injuries caused by a domestic animal where the “defendant’s conduct on the day in question indeed may have evidenced some negligence on her part.”29

The dissent averred that the horse’s behavior at issue – avoidance to lead lines- was the very behavior that resulted in the plaintiff’s injury and might not have occurred but for the defendant approaching with the lead line. Thus, “the horse responded in a manner entirely consistent with [her] propensity” to avoid the lead line and the matter should proceed to trial on the contested factual issues.

The Court of Appeals affirmed the Appellate Division, reiterating its holdings in Bard v. Jahnke and Collier that the defendant had no knowledge of the horse’s vicious propensities, etc. “No showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of ‘behavior that is normal or typical for the particular type of animal in question ( ).”30

In a major departure from its prior holding in Bard, the Court of Appeals [Smith, J] in Hastings v. Suave31 held that “the rule of Bard v. Jahnke does not bar a suit for negligence when a farm animal has been allowed to stray from property where it is kept.”  Here, plaintiff was injured when her vehicle collided with a cow that wandered off defendant’s property and onto a public highway. The Supreme Court granted defendants’ motions for summary judgment dismissal and the Appellate Division, Third Department, affirmed.  “While we are obliged to affirm … we must note our discomfort with this rule as it applies to these facts – and with this result. ***Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on the farm property… The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it.” (Emphasis added)

In reversing the Appellate Division, the Court of Appeals finally recognized that situations have and will continue to arise where its strict liability holdings will become “eroded” by “ad hoc exceptions.”32 “We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal – i.e., a domestic animal as that term is defined in Agriculture and Markets Law §108 (7) [supra at fn 4] – is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.” (Emphasis added)33

CONCLUSION

The Court of Appeals’ latest holding, which leaves the door ajar for recovery in a “different” case, in which the injuries were caused by the negligence of the owners of household pets without having to prove the defendants’ knowledge of their pet’s vicious propensities, is a major breakthrough in this area of the law.

Perhaps one or both of the plaintiffs in Bloom and/or Doerr will be arguing this issue before the Court of Appeals. In that event, there is no doubt Judges Smith and Pigott will pay special attention based on their prior opinions in Bard, Petrone, and Hastings, as set forth above. In the case of Doerr v. Goldsmith, the Judges will be treated to the well reasoned, common sense, dissent by Associate Justice Mazzarelli who pointed out that “[t]he rule articulated in Bard and affirmed in Petrone is not without controversy.”  She noted Judge Pigott’s concurrence in Petrone “on constraint” of Bard and his endorsement of the dissent of Judge R. S. Smith as set forth above.  She further states that “[b]ecause of the Bard/Petrone rule, it has been virtually impossible for people injured by animals to recover if they could not establish the defendants’ knowledge of the animal’s vicious propensities. Indeed, even if the injury was not caused by ‘vicious’ behavior, no remedy exists.    ***  Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that caused the accident.” (Emphasis added)34

34 Doerr v. Goldsmith, supra at 536

Changing Your Name in New York: A Guide for Attorneys and the Self-Represented by Gerald Lebovits and Taneem Kabir Continued

Changing your name under the common law is not entirely effective, though. If you want to put your new common-law name on your driver’s license, learner’s permit, or state identification, for example, you must satisfy the New York State Department of Motor Vehicle’s points-based proof-of-identification system, which involves presenting a marriage certificate, divorce papers, or a court-ordered document as evidence of your new name1 — an impossible feat without going through the petitioning process.
General Instructions for Petition Name Changes

For those who want to change their name by filing a petition instead of changing their name under the common-law method, the process in New York is fairly streamlined. Except in unusual circumstances, an attorney is unnecessary; New York courts make the name-change process user-friendly.

To identify published cases, we use in this article “Matter of” to specify who, or on behalf of whom, brought, or applied for, the petition. “Matter of” is how the official reporter series (Misc., A.D., and N.Y.) names cases. The unofficial reporter series (N.Y.S. and N.E.) uses “Application of”; the Bluebook uses “In re.” New York petitions themselves use “In the Matter of the Application of . . . .”
Although you may petition for leave to change the name you were given at birth or which you took through marriage or divorce or at adoption,2 only New York State residents may petition a New York court for a name change.3

The exact procedure to change your name depends on what type of petitioner you are, as well as when and where you file your petition for leave to assume another name. Thus, the requirements to change your own name are different than if you are petitioning on another person’s behalf.

If you are petitioning the New York City Civil Court to change your own name, use Office of Court Administration (OCA) form CIV-GP-82A (Adult Petition). If you are petitioning to change your minor child’s name use OCA form CIV-GP-82M (Minor Petition). If you are changing your name along with your spouse’s and child’s name, or both, use OCA form CIV-GP-82F (Family Petition). Supreme Court name-change forms do not have OCA codes.

All Civil Court and Supreme Court name-change petitions forms are available online at the New York State Unified Court System’s CourtHelp Website.4 If you are filing a name-change petition for yourself in Supreme Court or are filing a name-change petition for yourself or your minor child in Civil Court, you may create those petition forms through the court system’s interactive do-it-yourself (DIY) computer program on the CourtHelp Website.5

Name Change and Immigration/Naturalization Issues

If you are an applicant immigrating to the United States and wish to change your name upon becoming a U.S. citizen, there are two ways to accomplish this through the United States Citizenship and Immigration Services (USCIS).6 One way is to file a petition for leave to assume another name in your local Supreme Court, if you live outside New York City, or in the New York City Civil Court, if you are a New York City resident. (Outside New York City, you may petition the County Court. But that method, although authorized by Civil Rights Law § 60, might no longer be effective; every County Court clerk’s office the authors contacted directed us to the local Supreme Court.)
Once the court issues you a name-change order, you must present the order to the USCIS before you take your naturalization oath.7 The USCIS will also accept a marriage certificate or divorce decree issued by a state court as proof of your name change.

The other way is to ask the court in which you, as a petitioner, are taking your naturalization oath to allow your name change. The federal judge (district or immigration judge) or officer who administers your oath will issue, or direct the court clerk to issue, your Certificate of Naturalization with your new name.8

If you wish to change your name after you take the naturalization oath and after becoming naturalized and want your official naturalization documents to reflect that change, you must present to the USCIS (1) a marriage certificate, a divorce decree, or a state-court order reflecting your new name and (2) a duly executed Form N-565: Application for Replacement Naturalization/Citizenship Document. Because the U.S. Congress did not explicitly give the USCIS the authority to change your name, presenting these two items is the only way the USCIS can recognize your new name and issue you a replacement copy of your Declaration of Intention, Certificate of Naturalization, Certificate of Citizenship, or Repatriation of Citizenship.9

The process is similar if you want your passport to reflect your new name. The U.S. Department of State will recognize a name change for purposes of issuing you a U.S. passport if you submit to the Department of State’s Bureau of Consular Affairs any of the following items: (1) a state- or federal-court order reflecting your new name after you successfully petitioned for it; (2) a divorce decree declaring your return to your former name; (3) a Certificate of Naturalization issued with your new name; (4) a marriage certificate issued with your new name; or (5) a state- or federal-government-issued legal document, such as a driver’s license or military identification card, issued with your new name.10

Things become complicated if you do not have any of these items — that is, if you adopted your new name under the common law — but still wish to receive a passport with your new name on it. You must then submit evidence of public and exclusive use of the adopted name for a long period of time, generally five years.11 This evidence must include three or more public documents, such as a tax return or voter-registration statement, including one state or federal-government-issued identification that has your photograph on it.12

Name Change Through Marriage and Divorce

Under Civil Rights Law § 65, “Any person may, upon marriage, elect to assume a new name.”13

If you recently got married or will soon be, either you or your prospective spouse may elect to change your surname by entering the new surname in the appropriate space on the marriage-license application.14 You cannot change your first or middle name through marriage; you may change only your surname. Your new surname must consist of any one of these four options: (1) either spouse’s last name; (2) any former last name of either spouse; (3) a last name that combines the two spouses’ original last names into one or into a segment of the original last names; or (4) a combination last name combined by a hyphen, provided that each part of that combination last name is the pre-marriage surname, or any former last name, of each spouse.15 Your new surname takes effect upon the completion of the marriage ceremony, and your marriage certificate constitutes proof that you may lawfully use your new surname.16

Your spouse may never change your last name for you without your consent. Nor may your spouse make changing your name a condition of marriage. New York Domestic Relations Law § 15 requires marriage-license-application forms to inform prospective spouses that neither of them is forced to change a name and that either prospective spouse may change his or her name if either desires to do so.17
If you changed your surname upon marriage and get divorced, you may resume using your pre-marriage surname or any other earlier surname.18 Under New York Domestic Relations Law § 240-a, divorce decrees must include a provision that allows divorcés and divorcées to resume using their pre-marriage surname.19 This provision in a divorce decree has the same effect as a name-change order.

1 The Holy Bible, King James Version.
2 N.Y. Civ. Rights Law § 65(4) provides that “[n]othing in this article shall be construed to abrogate or alter the common law right of every person . . . to retain his or her name or to assume a new one so long as the new name is used consistently and without intent to defraud.” See also Lana v. Brennan, 124 N.Y.S.2d 136, 137 (Sup. Ct.7N.Y. County 1953) (“[A] man may lawfully change his name at will without legal proceedings of any sort. . . . This right is not affected by the statute whereby a change of name is authorized by judicial proceedings.”).
3 Smith v. U.S. Casualty Co., 197 N.Y. 420, 428-29, 90 N.E. 947, 950 (N.Y. 1910) (“‘At common law a man may lawfully change his name, or by general usage or habit acquire another name than that originally borne by him, and this without the intervention of either the sovereign, the courts, or Parliament; and the common law, unless changed by statute, of course, obtains in the United States.’”) (quoting 21 Am. & Eng. Encycl. of Law 311 (2d ed.). For a general overview of the common-law right to change one’s name, see Julia Shear Kushner, The Right to Control One’s Name, 57 UCLA L. Rev. 313, 324-28 (2009).

4 See, e.g., Matter of Halligan, 46 A.D.2d 170, 171, 361 N.Y.S.2d 458, 459 (4th Dep’t 1974) (“Under the common law a person may change his or her name at will so long as there is no fraud, misrepresentation or interference with the rights of others.”); Matter of Rivera, 165 Misc. 2d 307, 311, 627 N.Y.S.2d 241, 244 (Civ. Ct. Bronx County 1995) (“[P]etitioner has the right at common law to adopt any name so long as fraud or misrepresentation is nonexistent . . . .”). For a more detailed discussion of the requirement against confusion, fraud, and offense, see Kushner, supra note 3, at 316-17 & 332.

5 N.Y. St. Dep’t of Motor Vehicles, Change Your Address or Your Name, http://www.dmv.ny.gov/addr-name.htm (last visited July 17, 2013).
6 N.Y. Court Help, Name Changes, http://www.nycourts.gov/courthelp/namechangeinfo.html (last visited July 17, 2013).
7 N.Y. Civ. Rights Law § 60, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec60 (last visited July 17, 2013).
8 N.Y. Court Help, Name Changes, http://www.nycourts.gov/courthelp/namechangeinfo.html (last visited July 17, 2013).
9 N.Y. CourtHelp, Name Change DIY Forms, http://www.nycourts.gov/courthelp/namechangeinfo.html#Q4 (last visited July 17, 2013).
10 A Guide to Naturalization, Frequently Asked Questions, http://www.uscis.gov/files/article/chapter3.pdf (last visited July 17, 2013).
11 Id.
12 8 U.S.C. § 1447(e), available at http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-10299.html (last visited July 10, 2013) (“It shall be lawful at the time and as a part of the administration by a court of the oath of allegiance under section 337(a) [8 U.S.C. § 1448(a)], for the court, in its discretion, upon the bona fide prayer of the applicant included in an appropriate petition to the court, to make a decree changing the name of said person, and the certificate of naturalization shall be issued in accordance therewith.”).
13 Dep’t of Homeland Security, Instructions for Form N-565, Application for Replacement Naturalization/Citizenship Document, http://www.uscis.gov/files/form/n-565instr.pdf (last visited July 17, 2013).
14 22 C.F.R. 51.25, available at http://www.uscis.gov/ilink/docView/22CFR/HTML/22CFR/0-0-0-1/0-0-0-2898/0-0-0-3133.html (last visited July 17, 2013).
15 Id.
16 Id.
17 N.Y. Civ. Rights Law § 65, available at http://www.nycourts.gov/courts/nyc/civil/nc60.shtml#sec65 (last visited July 17, 2013).
18 Office of the City Clerk, Marriage Bureau, Name Change Options, http://www.cityclerk.nyc.gov/html/marriage/name_change.shtml (last visited July 17, 2013).
19 Id.
20 Id. (City Clerk).
21 N.Y. Dom. Rel. Law § 15(1)(b), available at http://www.cityclerk.nyc.gov/html/marriage/domestic_relations.shtml (last visited July 17, 2013); Elizabeth F. Emens, Changing Name Changing: Framing Rules and the Future of Marital Names, 74 U. Chi. L. Rev. 761, 765, 856 (2007), available at http://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/74.3/74_3_Emens.pdf (last visited July 17, 2013).
22 N.Y. Dom. Rel. Law § 240-a.
23 For an example of that, see Brody v. Brody, 98 Misc. 2d 560, 560, 414 N.Y.S.2d 285, 285 (Sup. Ct. Orange County 1979) (“The provisions of § 240-a of the Domestic Relations Law provide for a mandatory decretal paragraph authorizing the former wife to resume the use of her maiden name if she desires . . . .”).

Marital Quiz by George J. Nashak, Jr. Continued

Question #1 – May a court determine that a parent may not file further petitions for visitation rights until he or she completes, inter alia, therapeutic counseling, anger management classes and parenting skill classes?

Answer: No, Matter of Lew v. Lew 2013 NY Slip Op 2076 (2nd Dept.).

Question #2 – May a court order that a parent undergo counseling or treatment as a condition of further visitation?

Answer:  No, Matter of Lew v. Lew 2013 NY Slip Op 2076 (2nd Dept.).

Question #3 – When child support is ordered for more than one child, does the emancipation of the oldest child automatically reduce the amount of support owed under an order of support for multiple children?

Answer: No, an application to the court must be made. Lamassa v. Lamassa 2013 NY Slip Op 3639 (2nd Dept.).

Question #4 – Is it permissible for the Family Court to require a parent to seek permission of the court prior to filing future custody or visitation applications?

Answer: Yes, McNelis v. Carrington 2013 NY Slip Op 2400 (2nd Dept.).

Question #5 – In determining the parents’ respective obligations towards the cost of college, should the court reduce the education costs by college loans for which the student is responsible?

Answer: No, Bungart v. Bungart 2013 NY Slip Op 4303 (2nd Dept.).

Question # 6 – In a child support upward modification proceeding, is it sufficient to allege increase in expenses due to the child’s maturity or due to inflation?

Answer: No, the party seeking the upward modification must establish specific increases in the costs relating to the child’s needs. Matter of Radday v. McLoughlin 965 N.Y.S.2d 355 (2nd Dept. 2013).

Question #7 – Do acts of domestic violence by the father before the children were born and were present during only one act when they were infants, preclude the granting of custody to the father?

Answer: Yes, Matter of Felty v. Felty 2013 NY Slip Op 5454 (2nd Dept.).

Questions #8 – Is an appeal permitted from an order entered upon default?

Answer: No, the proper procedure is to move to vacate the default and appeal from the denial of that motion. Matter of Taurins v. Taurins 2013 NY Slip Op 5465 (2nd. Dept.).

Question #9 – Is it proper for a Support Magistrate to impute income to the father for monies he received from his family for his child’s college education?

Answer: Yes, Matter of Kiernan v. Martin 2013 NY Slip Op 5527 (2nd Dept.).

Question #10 – Is an unequivocal factual assertion made during an opening statement a judicial admission?

Answer: Yes, Kosturek v. Kosturek 2013 NY Slip Op 4310 (2nd. Dept.)

Culture Corner By Howard L. Wieder Continued

WHAT IS SATURNALIA?
Saturnalia was one of the most popular ancient Roman festivals, marked by the reversal of social roles, in which slaves and masters switched places. In the context of this film, it symbolizes the role reversal that takes place between the four leads when a homeless woman interferes in the life of a recently widowed retiree.

GUSTAVO MERCADO is the writer, director, director of photography, editor of “SATURNALIA.”  GUSTAVO MERCADO is an independent filmmaker, professor, and author whose work has been screened in national and international film festivals and cable. His short film SENSITIVE won the grand prize in Showtime’s Latino Filmmaker Showcase, and led to the production and broadcast of his film Vespertine for that network. His book for Focal Press THE FILMMAKER’S EYE: LEARNING (AND BREAKING) THE RULES OF CINEMATIC COMPOSITION has been translated into Portuguese, Turkish, Polish, Spanish, French, Chinese, Korean, and Japanese, and is the first of a series of four books planned on cinematography and editing. He currently teaches film production, cinematography, and editing at Hunter College in New York. Saturnalia is his second feature film.

TOM ASHTON is the Associate Producer of “SATURNALIA.” TOM ASHTON, the handsome, multi-talented actor, composer, musician, and songwriter, lives in Queens County, New York, with his wife and two children, both of whom are pursuing careers in the arts.  TOM ASHTON’s numerous credits as an actor/musician and songwriter/producer in film, TV and theatre. He records as Automatic80 and with additional projects The First Half MVPs and EverWake. TOM ASHTON’s previous band, Early Edison (Sony), opened for the Gin Blossoms, Missing Persons, Berlin, and Nine Days.

As an actor, TOM ASHTON’s previous films include FAULT LINES (dir. Kate Barker-Froyland – Cannes Short Film Corner, Women’s International Film Festival, Maryland Film Festival); SEMBLANCE (Beverly Hills Film Festival, Real to Reel Film Festival); GETTING BACK (ACE Film Festival); WISH YOU WERE MINE (co-executive produced & co-written, NYC Horror Film Festival); THE ACTION HERO (Litchfield Hills Film Festival); BLANKOUT (Chicago Short Film Festival, Big Apple Film Festival)

As a composer, TOM ASHTON’s music has been featured in A VIEW FROM THE TOP (Gwyneth Paltrow – Miramax); DICKIE ROBERTS: FORMER CHILD STAR (David Spade – Paramount); MY BOSS’ DAUGHTER (Ashton Kutcher – Dimension); TRU CALLING (Eliza Dushku – Fox); ROSWELL (WB); Portrait (Glass Half Full Productions); FAULT LINES; SATURNALIA (Cinekinofilms); LITTLE BUDDIES (Know Laughing Matter Prod.)

THE CHAIN THEATRE

There’s no need to travel to Manhattan for great theatre or film.  The conveniently located CHAIN THEATRE is located near the courthouse in Long Island City and a half a block away from the Court Square Diner, right off the Court House Road station of the number 7 train.  I was fortunate to discover this terrific, affordable venue for the arts when I reviewed GUSTAVO MERCADO’s film “SATURNALIA.”

Nomad Theatrical in association with Variations Theatre Group will present POLANSKI POLANSKI, about the life of controversial film director Roman Polanski. Performances began September 5 at The Chain Theatre.  In this hyper-physical monodrama performed by Grant Neale, playwright Saviana Stanescu (NYTheatre.com’s Person of the Year, 2010) has imagined three threshold moments in the life of famed film director Roman Polanski (Rosemary’s Baby, Chinatown, The Pianist). Under the direction of Tamilla Woodard, this fast-moving tale of desire, escape and punishment blends elements of film and theater as it delves into the brilliant mind of the controversial figure.

POLANSKI POLANSKI was presented to critical acclaim in 2010 at HERE Arts Center. In 2011, it was presented as part of the soloNOVA Arts Festival for which Grant Neale received an Innovative Theatre Award nomination for Outstanding Solo Performance. That year, POLANSKI POLANSKI also received a three-city tour in Romania at The Sibiu International Theater Festival, Teatrul Odeon in Bucharest, and Transylvania International Film Festival in Cluj.

Howard L. Wieder is the writer of both “The Culture Corner” and the “Books At The Bar” columns, appearing regularly in The Queens County Bar Bulletin, and is Justice Martin E. Ritholtz’s Principal Law Clerk in  Supreme Court, Queens County, Jamaica, NY.

Editor’s Note by Paul E. Kerson Continued

Turnstiles are now actually State Spying Devices, coded to inform the MTA of every rider’s every move. The sale of Metrocards is said to be anonymous. But what is to stop a future dictatorial Governor or Mayor or MTA Chair from modifying the Metrocard system to keep track of each and every named or photographed rider’s destination and time of arrival?

And then there is the so-called “private sector” of the “Information (read Totalitarian) Age” economy. Facebook knows who all your “friends” are. Amazon knows every item you purchase from their vast on-line department store. Mapquest knows everyplace you intend to go and have gone to by car. Your television cable provider knows every television show you watch. Google knows every search for information you’ve ever made. Microsoft knows every article composed on its software, including this one.

AOL, Yahoo, and G-mail now know and preserve the contents of  every subscriber’s e-mail, preserved forever.

Recent Times articles have disclosed that the NSA is actually in cahoots with Facebook, Amazon, Mapquest, Google, Microsoft and every other Silicon Valley “provider” (read insidious Peeping Tom).

The existing 4th Amendment prohibits warrantless searches of “persons, houses, papers and effects.” This is no longer sufficient to carry out the Founders’ Intention to Create a Free Society.

It is about time to enact Amendment 4.5 to the U.S. Constitution:

“No publicly or privately stored electronic information of any kind may be used in any local, state or federal criminal prosecution without a court-ordered subpoena or warrant signed by hand in ink by a local, state or federal judge of competent jurisdiction after careful consideration.”

Now, if Washington will quickly enact this Amendment, the legacy of freedom handed to us by Ben Franklin and George Orwell will be satisfied.

“Signed by hand in ink” is perhaps the most important part of the revised subpoena and warrant requirement of Amendment 4.5. With computers and remote access, a judge’s clerk, spouse, child or even his or her cat can touch buttons and respond to a remote police officer’s request for a warrant. It also means the judge will actually have to think about whether or not to grant the warrant or subpoena, and consider the supporting police affidavit thoughtfully.

“After careful consideration” means the judge must telephone the police officer or prosecutor to find out what the case is all about, and whether the Government’s electronic intrusion into a Citizen’s life is justified by the ACTUAL threat to public safety, if any.

Without this Amendment, we are a country I don’t recognize. We are in the Police State our ancestors warned us against, and spilled their blood to prevent.

Let us take our free country back with this Amendment before it is too late.

The writer is a Past President of the Queens County Criminal Courts Bar Association, a past Acting Village Justice of the Ardsley, Westchester County, Village Court, and our current QCBA Vice President and Editor of this publication.