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Updated August 31, 2015

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)


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Service by "Nailing" On the Day Before the Last Possible Day and "Mailing" on the Last Possible Day Was Timely


The Court of Appeals, affirming the Fourth Department, determined that service by "nailing and mailing" the petition to invalidate a designating petition was timely. The petition was "nailed" on the day before the last possible day for service and was "mailed" on the last possible day for service:


We agree with the courts below that this proceeding was properly commenced in a timely manner. Here, there is no dispute that petitioner complied with the terms of the order to show cause by nailing the papers to the door of [respondent's] residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23. [Respondent] maintains that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period. However, where the instrument of notice has been delivered by another prescribed method within the statutory period, we have rejected such contentions concerning mailing ... . Matter of Angletti v Morreale, 2015 NY Slip Op 06647, CtApp 8-26-15









Doctrine of Comity Precluded New York Action Attacking Bermuda Judgment


The Second Department determined Supreme Court, under the doctrine of comity, properly dismissed the complaint attacking a foreign country judgment. Plaintiff had appeared in the Bermuda case and made no showing of fraud or a public policy violation:


Generally, the courts of this State will "accord recognition to the judgments rendered in a foreign country under the doctrine of comity," which is "the equivalent of full faith and credit given by courts to judgments of our sister States" ... . Absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to a strong public policy of New York State, a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding commenced in a New York court ... .


Contrary to the plaintiff's contention, the Supreme Court properly determined that the adjudication of his claims for compensation under employment and consulting agreements with his former employer in a winding-up proceeding that was litigated in the British Overseas Territory of Bermuda precluded the instant action against the employer, among others, to recover damages for breach of contract and fraud. The plaintiff appeared in the Bermuda proceeding by submitting his claims to the Bermuda court, and made no showing of fraud or that a public policy of this State would be violated by recognizing the Bermuda court's rejection of his claims. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the complaint based on principles of comity. Basile v CAI Master Allocation Fund, Ltd., 2015 NY Slip Op 06650, 2nd Dept 8-26-15





Case Should Not Have Been Dismissed on Forum Non Conveniens Grounds---Analytical Criteria Explained


The First Department determined Supreme Court should not have dismissed plaintiff's action on "forum non conveniens" grounds. The action concerned a lease and guaranty for property located in Georgia, but the property itself was not part of the dispute. Both parties were authorized to do business in New York, plaintiff's principal place of business was in New York, the lease was executed in New York and the guaranty was executed in New Jersey. The fact that Georgia law was to be applied (by the terms of the contract) did not control. The court explained the analytical criteria: 


Generally, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" ... .


"The burden rests upon the defendant challenging the forum to demonstrate relevant . . . factors which militate against accepting the litigation and the court, after considering and balancing the various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not" ... . "Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum" ... .


The court may also consider the residency of the parties and where the transaction out of which the case arose occurred ... . "No one factor is controlling . . . [t]he great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case" ... . Here, there is a substantial nexus to New York.


"Although the residence of a plaintiff is not the sole determining factor on a motion for dismissal on grounds of forum non conveniens, it has been held to generally be the most significant factor in the equation" ... . As the motion court acknowledged, in this case both parties are authorized to do business in New York and the plaintiff's principal place of business is in New York. While the real property that is the subject of the lease and guaranty is located in Georgia, the actual property is not at issue in this case. In any event, the lease was actually executed in New York and some of the correspondence was sent to the nonparty tenant at a New York address. Moreover, the guaranty which is the subject of this litigation was executed in New Jersey and the defendant guarantor, a New Jersey corporation with its principal executive office in New Jersey, does not conduct any business in Georgia. While counsel for the nonparty tenant submitted an affidavit listing several potential witnesses who are located in either Georgia or Tennessee, there is no indication as to what knowledge these proposed witnesses have relating to the issues in this case, or whether they would even testify. Thor Gallery at S. DeKalb, LLC v Reliance Mediaworks (USA) Inc., 2015 NY Slip Op 06644, 1st Dept 8-25-15






Although the President of a Corporation Was Also a Member of Defendant Limited Liability Company, the Corporation and Limited Liability Were Not Shown to Be "United in Interest" Such that the "Relation-Back" Doctrine Would Apply to Allow Adding the Corporation as a Defendant After the Statute of Limitations Had Run


The Second Department determined plaintiffs were not entitled to amend the complaint to add a party after the statute of limitations had passed pursuant to the "relation-back" doctrine. Although the president of the party to be added, Madjek, Inc., was a member of Madjek, LLC, (a named defendant), that relationship alone was not enough to demonstrate Madjek, LLC, and Madjek, Inc. were "united in interest" such that one would be vicariously liable for the acts of the other. The court explained the "relation-back" and "united in interest" criteria:


To establish the applicability of the relation-back doctrine, a plaintiff is required to prove that: (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the commencement of the action such that it will not be prejudiced in maintaining its defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiffs as to the identity of the proper parties, the action would have been brought against it as well (see CPLR 203[b] ...). Once a defendant has demonstrated that the statute of limitations has expired, the burden is on the plaintiff to establish the applicability of the relation-back doctrine ... .


While it is undisputed that the first prong of the test has been satisfied here, the plaintiffs failed to establish that the Madjek defendants are united in interest. Defendants are united in interest only when their interest "in the subject-matter [of the action] is such that [the defendants] stand or fall together and that judgment against one will similarly affect the other" ... . Defendants are not united in interest if there is a possibility that the new party could have a different defense than the original party ... . Here, the only fact that the plaintiffs established in support of their contention that the Madjek defendants were united in interest was that the president of Madjek, Inc., was a member of Madjek, LLC. This fact, standing alone, is insufficient to establish that the Madjek defendants are vicariously liable for the acts of each other and, thus, is insufficient to establish that the Madjek defendants are united in interest ... . Montalvo v Madjek, Inc., 2015 NY Slip Op 06661, 2nd Dept 8-26-15






Recovery Under the Doctrine of Quantum Meruit Was Proper---Proof of Damages Was Sufficient


The Second Department determined defendants, who did construction work without a written contract, were entitled to recover under the doctrine of quantum meruit.  The court noted that proof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs:


The elements of a cause of action sounding in quantum merit are: (1) the performance of services in good faith, (2) the acceptance of services by the person to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered ... . Here, the trial court properly determined that the ... defendants performed services in good faith, that the plaintiff accepted those services, and that the ... defendants expected to be compensated therefor. The court also properly determined that the ... defendants provided sufficient evidence of the reasonable value of their services. The unsigned agreement furnished evidence of such value ... . In addition, the ... defendants presented proposals that they submitted to the plaintiff for payment in connection with additional work that they performed, invoices and proof of payments to subcontractors, and invoices and proof of payments to suppliers of materials and equipment. The fair and reasonable value of the ... defendants' services may be properly based on evidence concerning the amount that they billed the plaintiff for such services, and the amounts that subcontractors billed them for their services and for costs of supplies and equipment ... . 


Moreover, "[p]roof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs" ... . The record demonstrates that the ... defendants, who had 20 years of experience in construction and had built over 100 homes, had knowledge of the actual costs of the services being provided ... . Therefore, the ... defendants' testimony provided further evidence of the reasonable value of the services performed ... . Johnson v Robertson, 2015 NY Slip Op 06658, 2nd Dept 8-26-15




County Court Should Not Have Dismissed the Indictment on a Ground Not Raised by the Defendant Without Giving the People the Opportunity to Address the Issue


After reviewing the grand jury testimony, County Court dismissed the indictment on a ground (the complainant's lack of testimonial capacity) not raised in defendant's omnibus motion.  The Second Department reversed because the People had not been given the opportunity to address the issue:


In an omnibus motion, the defendant sought, inter alia, to dismiss the indictment on the general grounds that the grand jury proceedings were defective and that the charges were not supported by legally sufficient evidence before the grand jury. The County Court, upon its own examination of the grand jury minutes, determined, sua sponte, that there was an issue as to the complainant's testimonial capacity, and dismissed the indictment on the ground that the complainant lacked testimonial capacity.


The County Court erred in dismissing the indictment based upon a specific defect in the grand jury proceedings not raised by the defendant, without affording the People notice of the specific defect and an opportunity to respond. A motion to dismiss an indictment pursuant to CPL 210.20 must be made in writing and upon reasonable notice to the People (see CPL 210.45[1]). Moreover, "orderly procedures require that the People be given the opportunity to address any alleged defects prior to dismissal of an indictment"... . People v Coleman, 2015 NY Slip Op 06676, 2nd Dept 8-26-15






Unduly Suggestive Line-Up Required a New Trial


The Second Department ordered a new trial because the hearing court erroneously concluded the line-up was not unduly suggestive. The defendant was the only person in the line-up wearing a red shirt (which was a prominent part of the description of the assailant by the complainant).  A new trial was necessary because the People did not have the opportunity to demonstrate whether there was an independent source for the complainant's identification:


The hearing court erred in concluding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant's clothing that the complainant gave to the police. Thus, at the lineup, the defendant's red shirt improperly drew attention to his person ... .


The hearing court's erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant's in-court identification. Since the People did not have an opportunity to establish the existence of an independent source, if any, a new trial is required, to be preceded by an independent source hearing ... . People v Pena, 2015 NY Slip Op 06681, 2nd Dept 8-26-15






Evidence of Photo-Array Identification Properly Allowed to Counter Inference Line-Up Was Suggestive (Defendant Restrained in Line-Up)


The Second Department determined the identification of the defendant in a photo-array was properly allowed in evidence because the defendant was restrained in the line-up, which could give rise to an inference the line-up was suggestive:


Under the circumstances of this case, the Supreme Court properly allowed the admission of evidence concerning the pretrial photographic identification of the defendant made by one of the two complainants. The evidence elicited at a suppression hearing established that the defendant had to be restrained during the lineup at which the complainants identified him due to his uncooperative behavior. Since the restraint of the defendant during the lineup could give rise to an inference that the lineup was suggestive, and the lineup identification made by the complainants was therefore unreliable, the People were properly permitted to counter this inference by introducing evidence of the prior photographic identification... . People v Adamson, 2015 NY Slip Op 06672, 2nd Dept 8-26-15






"At Will" Employee Stated a Cause of Action Alleging Defendants Fraudulently Induced Him to Take the "At Will" Job


The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff had stated a cause of action for fraud in the inducement in connection with plaintiff's acceptance of "at will" employment with defendants. The complaint alleged that defendants induced plaintiff to leave his well-compensated position with J P Morgan by falsely indicating plaintiff was being hired because of defendants' heavy work load. The complaint further alleged that defendants did not have much work and plaintiff was hired solely to provide defendants with his business contacts. After turning over his business contacts, plaintiff alleged, defendants terminated him, claiming there was not enough work to support his position. The First Department reasoned plaintiff was not seeking damages for wrongful termination, which is not available for an "at will" employee, but rather was seeking damages for defendants' fraudulently inducing him to give up his lucrative employment with J P Morgan in order to take the "at will" employment. The court further noted that the "general" merger clause in the "at will" employment contract did not preclude the action and the action concerned statements of material existing fact, not (nonactionable) statements of future expectations:


An at-will employee, who has been terminated, can not state a fraudulent inducement claim on the basis of having relied upon the employer's promise not to terminate the contract ... , or upon any representations of future intentions as to the duration or security of his employment ... . However, where an at-will employee alleges an injury "separate and distinct from termination of the [his] employment," he may have a cause of action for fraudulent inducement ... . The at-will employee must allege not that his employer wrongly fired him, but that "[he] would not have taken the job in the first place if the true facts had been revealed to [him]" ... .


Plaintiff does not allege that defendants wrongfully terminated him. He claims that they misrepresented the nature of the job that they were hiring him to do, that they were only hiring him to gain access to his contacts and that if they had told him this he would not have left his job at J.P. Morgan to work for them. Indeed, plaintiff's injury preceded his termination.


Nor are plaintiff's damages speculative, since he alleged that they stem not from his loss of employment with defendants, but from his loss of employment with J.P. Morgan. These damages represent "the sum necessary for restoration to the position occupied before the commission of the fraud" ... . Laduzinski v Alvarez & Marsal Taxand LLC, 2015 NY Slip Op 06646, 1st Dept 8-25-15






False Arrest and False Imprisonment Causes of Action Properly Dismissed---City Demonstrated Police Had Probable Cause to Arrest Based Upon a Complaint by an Identified Citizen


The Second Department determined plaintiff's complaint alleging false arrest and false imprisonment was properly dismissed, finding the city demonstrated the police had probable cause to arrest the plaintiff based upon allegations made by an identified complainant. Although accused of a shooting by the alleged victim, plaintiff was never indicted. Discrepancies in statements made by the alleged victim of the shooting did not negate the existence of probable cause to arrest:


To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged ... . Where, as here, an arrest is made without a warrant, "[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim" ... . "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed" ... .


The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging false arrest and false imprisonment by submitting evidence demonstrating that the police had probable cause to arrest the plaintiff. "[I]nformation provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest" ... . The defendants' submissions established that the complainant, an identified citizen, claimed that he was shot in the back and identified the plaintiff as the person who shot him. The arresting detective testified at his deposition that he observed the complainant's gunshot wound and recovered a bloody T-shirt with a bullet hole from him. The defendants' submissions demonstrated that the complainant identified the plaintiff as the shooter by name, provided the police with a physical description of him, and identified the plaintiff as the shooter in a photograph, all prior to the plaintiff's arrest ... . Nolasco v City of New York, 2015 NY Slip Op 06663, 2nd Dept 8-26-15





"Lack of Standing" Defense Waived by Not Asserting It In the Answer---"Lack of Standing" Not a Jurisdictional Defect---Sua Sponte Dismissal for "Lack of Standing" Not Warranted


In reversing Supreme Court's denial of plaintiff-bank's unopposed motions in a foreclosure action, the Second Department noted that defendant homeowner had waived the "lack of standing" defense by not asserting it in her answer, and, in any event, "lack of standing" is not a jurisdictional defense for which the court's sua sponte dismissal of the complaint was warranted:


The Supreme Court abused its discretion in, sua sponte, directing the dismissal of the complaint for the plaintiff's lack of standing. A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal ... . Here, the court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint. [The homeowner] had waived the defense of lack of standing by failing to assert it in her amended answer, which she withdrew in any event, the State waived the defense by serving and filing a limited notice of appearance, and the remaining defendants waived the defense by failing to appear or answer... . Furthermore, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court ... . Mortgage Elec. Registration Sys., Inc. v Holmes, 2015 NY Slip Op 06662, 2nd Dept 8-26-15






Labor Law 240 (1) Concerns Only Whether Proper Safety Equipment Was Provided---Comparative Negligence Is Not Relevant


The First Department determined plaintiff was entitled to summary judgment under Labor Law 240 (1) for injury incurred while using the top half of an extension ladder which did not have rubber feet. The court noted that contributory or comparative negligence is not a defense to a Labor Law 240 (1) cause of action:


Plaintiff presented evidence establishing that defendants did not provide "proper protection" within the meaning of Labor Law § 240(1). The record indicates that plaintiff "only saw the extension ladder" in the area where he was working. There was no scaffolding available to plaintiff. Plaintiff was not wearing a safety harness, and there was no appropriate anchor point to tie off the ladder.


We reject defendants' assertion that plaintiff's conduct was the sole proximate cause of his injuries. Plaintiff's knowing use of half of the extension ladder without proper rubber footings goes to his culpable conduct and comparative negligence. Comparative negligence is not a defense to a claim based on Labor Law § 240(1), where, as here, defendants failed to provide adequate safety devices ... . Further, defendants failed to show that plaintiff refused to use the safety devices that were provided to him. Stankey v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06643, 1st Dept 8-25-15





Plaintiff Entitled to Summary Judgment Re: Fall from Non-Defective Ladder After Co-Worker Who Had Been Stabilizing the Ladder Was Called Away---Defendants Did Not Demonstrate Plaintiff Was Adequately Protected---Comparative Negligence Is Not Relevant


The First Department, over a dissent, determined plaintiff's motion for summary judgment for the Labor Law 240 (1) cause of action should have been granted. Plaintiff fell from a non-defective ladder when he lost his balance while attempting to use a drill to install a metal stud.  A co-worker, who had been stabilizing the ladder, had been called away five minutes before plaintiff fell. Plaintiff alleged no one else was around who could have stabilized the ladder. The court noted that plaintiff's alleged comparative negligence was not relevant. The only relevant consideration is whether plaintiff was provided with adequate protection, an issue not addressed by defendants:


Supreme Court erred in denying plaintiffs' motion for summary judgment against defendants on the cause of action alleging a violation of Labor Law § 240(1). The dissent mischaracterizes the majority's position. We do not simply hold that "a plaintiff-worker's testimony that he fell from a non-defective ladder while performing work . . . alone establish[es] liability under Labor Law § 240(1). Rather, it is undisputed that no equipment was provided to plaintiff to guard against the risk of falling from the ladder while operating the drill, and that plaintiff's coworker was not stabilizing the ladder at the time of the fall. Under the circumstances, we find that plaintiff's testimony that he fell from the ladder while performing drilling work established prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) claim ... . In response, defendants failed to raise a triable issue of fact concerning the manner in which the accident occurred or whether the A-frame ladder provided adequate protection. Their arguments that plaintiff caused his own injuries, by allegedly placing himself in a position where he had to lean and reach around the side of the ladder to fix the wall stud, at most establish comparative negligence, which is not a defense to a Labor Law § 240(1) claim ... . Caceres v Standard Realty Assoc., Inc., 2015 NY Slip Op 06645, 1st Dept 8-25-15





Collapse of Rotten Floor First Revealed When Carpet Was Removed Was Not Foreseeable---Labor Law 240(1) Cause of Action Properly Dismissed---Defect Was Latent and Was Not Caused by Owner---Labor Law 200 and Common-Law Negligence Causes of Action Properly Dismissed


The Second Department determined plaintiff's fall through a rotted portion of subfloor exposed when carpeting was removed was not foreseeable.  Therefore the Labor Law 240 (1) cause of action, the Labor Law 200 cause of action, and the common-law negligence cause of action against the owner of the property were properly dismissed:


In order for liability to be imposed under Labor Law § 240(1), there must be "a foreseeable risk of injury from an elevation-related hazard . . . as [d]efendants are liable for all normal and foreseeable consequences of their acts'" ... . Thus, the collapse or partial collapse of a permanent floor may give rise to liability under Labor Law § 240(1) where " circumstances are such that there is a foreseeable need for safety devices'" ... . Here, however, the plaintiffs failed to demonstrate that the partial collapse of a small section the basement subfloor and, in turn, the need for safety devices to protect the injured plaintiff from an elevation-related hazard, were foreseeable. Consequently, since the plaintiffs did not meet their prima facie burden of demonstrating their entitlement to judgment as a matter of law, the Supreme Court properly denied that branch of their motion which was for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1) .. . * * *


Where, as here, a plaintiff's alleged injury arose not from the manner in which the work was performed, but from an allegedly dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing only that it neither created the dangerous condition nor had actual or constructive notice of it ... . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected ... . "When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" ... . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not have actual or constructive notice of the defect in the subfloor, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that it did not create the defect. Carrillo v Circle Manor Apts., 2015 NY Slip Op 06652, 2nd Dept 8-26-15




Negligent Supervision Cause of Action Against School Should Have Been Dismissed


Reversing Supreme Court, the Second Department, over a strong dissent, determined the defendants' motions for summary judgment should have been granted. Plaintiff-student alleged he was injured when he tripped over another student's (Maher's) foot during a "speedball" game at school. Plaintiff-student provided conflicting statements about whether Maher had acted deliberately. With respect to the negligent supervision cause of action, the court wrote:


The School District's submissions, including an affidavit of a physical education expert, established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it ... . The evidence submitted by the School District demonstrates that the incident occurred so quickly that it could not have been prevented by even the most intense supervision ... . In opposition, the plaintiffs failed to raise a triable issue of fact ... . While the plaintiffs emphasize that there is evidence in the record indicating that Maher had shoved another student in a gym class on an earlier date, this evidence was insufficiently specific to place the School District on notice of the conduct that led to the infant plaintiff's injuries ... . Finally, while the compulsory nature of the gym class activities precludes an assumption of risk defense, it is not an impediment to summary judgment, as it does not deprive the School District of its defense that the incident was sudden and unexpected ... . Scavelli v Town of Carmel, 2015 NY Slip Op 06666, 2nd Dept 8-26-15






Licensing Officer Has Broad Discretion Re: Denial of Application for a Pistol Permit


In upholding the denial of an application for a pistol permit, the Second Department explained the broad discretion afforded the licensing officer:


Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be at least 21 years of age, of good moral character with no prior convictions of a felony or serious offense, who has not had a license revoked or who is not under a suspension or ineligibility order, and a person "concerning whom no good cause exists for the denial of the license" (Penal Law § 400.00[1][n]...). "A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause" (... see Penal Law § 400.00[1][n]...).


Contrary to the petitioner's contention, the licensing officer's determination that good cause existed to deny the application was not arbitrary and capricious. The determination was rationally based, inter alia, on the petitioner's criminal history ... . Moreover, the licensing officer, by her own observation, found that the petitioner had issues with judgment, credibility, the ability to stay in control, and general moral fitness. Matter of Lawtone-Bowles v Klein, 2015 NY Slip Op 06669, 2nd Dept 8-26-15

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