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

 

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COURT OF APPEALS

 

 

CONSUMER LAW.

SELLERS MUST POST THE TOTAL PRICE CHARGED TO CUSTOMERS WHO PAY WITH CREDIT CARDS, WHICH CAN BE HIGHER THAN THAT CHARGED TO CUSTOMERS WHO PAY CASH (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a concurring opinion, a partial dissent and a dissent, determined that General Business Law 518 requires businesses to post the total price charged to customers using credit cards, which can be higher than that charged to customers who pay cash:

Plaintiffs are five merchants who allege that they wish to engage in differential pricing and to inform customers of their practice by stating the cash price in dollars and cents and the credit card price as a percentage or dollars-and-cents amount, reflecting only the additional charge for credit card purchases and not the total dollars-and-cents price for such purchases. The point is best illustrated by examples. Plaintiffs wish to tell their customers, for example, that "a haircut costs $10.00, and if you pay with a credit card you will pay 3% extra" or "a haircut costs $10.00, and if you pay with a credit card you will pay an additional 30 cents." ... This practice, "listing one price and a separate surcharge amount," has been described as "a single-sticker regime" ... or a "single-sticker-price scheme" ... , and we refer to it similarly. The merchants have challenged GBL § 518 as a violation of their First Amendment rights, to the extent that it allows them to charge credit card users higher prices but prohibits them from describing the price difference as they wish. * * *

.. [W]e conclude that a merchant complies with GBL § 518 if and only if the merchant posts the total dollars-and-cents price charged to credit card users. In that circumstance, consumers see the highest possible price they must pay for credit card use and the legislative concerns about luring or misleading customers by use of a low price available only for cash purchases are alleviated. To be clear, plaintiffs' proposed single-sticker pricing scheme — which does not express the total dollars-and-cents credit card price and instead requires consumers to engage in an arithmetical calculation, in order to figure it out — is prohibited by the statute. Expressions Hair Design v Schneiderman, 2018 NY Slip Op 07037, CtApp 10-23-18

CONSUMER LAW (SELLERS MUST POST THE TOTAL PRICE CHARGED TO CUSTOMERS WHO PAY WITH CREDIT CARDS, WHICH CAN BE HIGHER THAN THAT CHARGED TO CUSTOMERS WHO PAY CASH (CT APP))/CREDIT CARDS  (SELLERS MUST POST THE TOTAL PRICE CHARGED TO CUSTOMERS WHO PAY WITH CREDIT CARDS, WHICH CAN BE HIGHER THAN THAT CHARGED TO CUSTOMERS WHO PAY CASH (CT APP))/GENERAL BUSINESS LAW 518 (SELLERS MUST POST THE TOTAL PRICE CHARGED TO CUSTOMERS WHO PAY WITH CREDIT CARDS, WHICH CAN BE HIGHER THAN THAT CHARGED TO CUSTOMERS WHO PAY CASH (CT APP))

CRIMINAL LAW, APPEALS, ATTORNEYS, CONSTITUTIONAL LAW.

MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two judge dissent, determined that missing the deadline for filing an application for leave to appeal to the Court of Appeals does not deprive defendant of his or her constitutional right to effective assistance of counsel or due process. Therefore the defendant is not entitled to a writ of error coram nobis or an exception to the time limits in Criminal Procedure Law 460.30:

In People v Andrews (23 NY3d 605, 616 [2014]), we held that counsel's failure to file a timely criminal leave application (CLA) to this Court within the thirty-day statutory time frame provided by CPL 460.10 (5) (a), or move pursuant to CPL 460.30 within the one-year grace period for an extension to cure the error, does not deprive a defendant of a constitutional right to the effective assistance of counsel or due process under the Sixth and Fourteenth Amendments of the United States Constitution. In the absence of a constitutional violation, a defendant cannot resort to coram nobis to abrogate the one-year time limitation on the remedy provided in CPL 460.30 for the improper conduct of his or her attorney in failing to file a timely CLA. We left open the question of whether a more protective rule should be recognized under the New York State Constitution (id. at 616). Today, we hold the same rule applies under article I, section 6 of the New York State Constitution. Thus, defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a CLA seeking leave to appeal to this Court. * * *

Given our history paralleling our jurisprudence with that of the federal courts in affording defendants meaningful review on appeals, and without any reason to deviate from that tradition today, we hold that there is no state constitutional right to legal representation on an application for leave to appeal to this Court. People v Grimes, 2018 NY Slip Op 07038, CtApp 10-23-18

CRIMINAL LAW (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/APPEALS (CRIMINAL LAW, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/ATTORNEYS (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/RIGHT TO COUNSEL (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CONSTITUTIONAL LAW (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CORAM NOBIS (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/INEFFECTIVE ASSISTANCE (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))

APPELLATE DIVISION

ARBITRATION, CONTRACT LAW, CIVIL PROCEDURE, UTILITIES.

IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a class action stemming from the loss of power during Hurricane Sandy, determined: (1) the public was a third-party beneficiary of a contract between National Grid and the Long Island Power Authority (LIPA); (2) the public was subject to the arbitration clause in the contract; and (3) filing a pre-answer motion dismiss did not act as a waiver of arbitration:

... [U]nder limited circumstances nonsignatories may be compelled to arbitrate" ... . "Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory knowingly exploits' the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement" ... . "The benefits must be direct, and the party seeking to compel arbitration must demonstrate that the party seeking to avoid arbitration relies on the terms of the agreement containing the arbitration provision in pursuing its claim" ... . ...

National Grid ... demonstrated that the plaintiffs derived a direct benefit from the [contract] and that the plaintiffs are explicitly relying upon the terms of that agreement to support their claims against National Grid. Accordingly, under these circumstances, the plaintiffs should be compelled to arbitrate in accordance with the arbitration clause ... . ... 

.. [T]the service of a pre-answer motion to dismiss does not constitute waiver of the right to arbitrate, since "a defendant is entitled to have the sufficiency of a complaint tested before a duty to seek arbitration arises" ... . Similarly, an appeal from the denial of a motion to dismiss does not result in waiver of the right to arbitrate ... . Matter of Long Is. Power Auth. Hurricane Sandy Litig., 2018 NY Slip Op 07127, Second Dept 10-24-18

ARBITRATION (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CONTRACT LAW (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CIVIL PROCEDURE (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/UTILITIES (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))

ARBITRATION, INSURANCE LAW, CIVIL PROCEDURE.

THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, over a dissenting opinion, determined that the arbitrator-panel (JAMS) did not have the power to reconsider its initial finding (called a partial final award or PFA) that the $10 million settlement paid by Allied was not a "loss" within the meaning of the insurance policy issued to Allied by AISLIC. The parties had agreed to first decide whether the settlement constituted a "loss" and then determine the applicable costs stemming from the insured's defense of the claim against it.  The First Department held that the arbitrator-panel did not have the authority to reconsider the initial PFA and reverse itself (finding that the settlement did actually constitute a "loss") in the course of considering the defense and indemnification issues:

Here, when the panel reconsidered the PFA, it exceeded its authority based on the common law doctrine of functus officio. The doctrine of functus officio provides that absent an agreement to the contrary, after an arbitrator renders a final award, the arbitrator may not entertain an application to change the award, "except ... to correct a deficiency of form or a miscalculation of figures or to eliminate matter not submitted"(...CPLR 7509; CPLR 7511[c]). "In order to be final,' an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them" ... . "Generally, in order for a claim to be completely determined, the arbitrators must have decided not only the issue of liability of a party on the claim, but also the issue of damages" ... .

 

However, "the submission by the parties determines the scope of the arbitrators' authority" ... . Thus, "if the parties agree that the [arbitration] panel is to make a final decision as to part of the dispute, the arbitrators have the authority and responsibility to do so . . . [and] once [the] arbitrators have finally decided the submitted issues, they are, in common-law parlance, functus officio,' meaning that their authority over those questions is ended" ... . American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 2018 NY Slip Op 07194, First Dept 10-25-18

ARBITRATION (THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/INSURANCE LAW (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/CIVIL PROCEDURE (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/FUNCTUS OFFICIO (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))

CIVIL PROCEDURE, JUDGES.

COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT).

The First Department noted that Supreme Court did not have the authority to, sua sponte, vacate its prior decision and order and reinstate a 2014 judgment. The motion papers did not request any relief that could be the basis of the court's action:

"[A] trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment" ... . Although "a court may grant relief[] pursuant to a general prayer contained in the notice of motion . . . " ... , no such clause was contained in plaintiff's notice of motion. In the absence of any cross motion from the defendants, or any other kind of request for vacatur of the court's prior order decision and prior order and reinstatement of the prior judgment, the court erred in doing so on its own initiative. Howell v City of New York, 2018 NY Slip Op 07178, First Dept 10-25-18

CIVIL PROCEDURE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/SUA SPONTE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/JUDGES (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))

CONTRACT LAW, LANDLORD-TENANT, NEGLIGENCE, TOXIC TORTS.

BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the lessee's motion for summary judgment in this lead paint injury case should have been granted. The injured child was in the subtenant's family. The subtenant sued the owner of the building for failing to abate the lead paint hazard. The owner attempted to seek indemnification from the lessee. The indemnification clause in the lease, however, was not enforceable because it was not limited to the lessee's negligence:

At the time when the alleged injury occurred, Administrative Code of the City of New York former § 27-2013(h) (Local Law 1) ... placed a specific duty on the owner of a multiple dwelling to abate lead paint in leased premises where children under the specified age resided... . The owner of a cooperative corporation was considered the owner of a multiple dwelling for purposes of Local Law 1... .

 

Contrary to the [lessee's] contention, the fact that Local Law 1 imposed a nondelegable duty on [the owner] to abate the lead paint hazard does not mean that [the owner] is precluded from recovering in indemnity, either contractual or common-law, from third parties whose acts or omissions are alleged to have caused or contributed to the infant plaintiff's injuries... . However, under the circumstances presented, [the owner] may not seek contractual indemnification from the [lessee] based on the indemnification provision contained in the proprietary lease. "A broad indemnification provision in a lease . . . which is not limited to the lessee's acts or omissions, fails to make exceptions for the lessor's own negligence, and does not limit the lessor's recovery under the lessee's indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321" ... . N.A. v Hillcrest Owners Assn., Inc., 2018 NY Slip Op 07133, Second Dept 10-24-18

CONTRACT LAW (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/LANDLORD-TENANT (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/NEGLIGENCE  (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/TOXIC TORTS (LEAD PAINT, (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/INDEMNIFICATION (LEASE, BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))

CONTRACT LAW, TRUSTS AND ESTATES.

ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER'S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the complaint stated causes of action for promissory estoppel and a constructive trust. Plaintiff alleged that his mother removed him from her will, not to disinherit him, but to prevent his former wife from sharing in the estate.  Plaintiff and defendant are brother and sister. The agreement regarding the disposition of the estate made between plaintiff and defendant violated the statute of frauds. However promissory estoppel may be applicable:

The amended complaint alleges that, both before the mother's death and subsequent to it, plaintiff and defendant entered into an oral agreement whereby, essentially, defendant would be the sole heir to the estate, and would, among other things, give plaintiff his 50% share after completion of plaintiff's divorce, and, until the final transfer of his share of the estate, defendant would maintain a life insurance policy of at least $5 million, with plaintiff as the sole beneficiary. Giving the complaint "the benefit of every possible favorable inference" ... , it may be inferred that this oral agreement was in furtherance of the mother's wishes, as her decision to remove plaintiff from the will was for the sole purpose of denying the former wife any access to the estate, and not an affirmative wish to disinherit plaintiff. In furtherance of the oral agreement, following the mother's death, plaintiff paid the estate tax from his share of the mother's life insurance policy.

... "[W]here the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds" ... . 

 

Plaintiff here has also sufficiently alleged the elements of his constructive trust claim ... . Castellotti v Free, 2018 NY Slip Op 07045, First Dept 10-23-18

CONTRACT LAW (PROMISSORY ESTOPPEL, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER'S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/PROMISSORY ESTOPPEL (ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER'S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/CONSTRUCTIVE TRUST (ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER'S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/TRUSTS AND ESTATES (PROMISSORY ESTOPPEL, CONSTRUCTIVE TRUST, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER'S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))/STATUTE OF FRAUDS (PROMISSORY ESTOPPEL, CONSTRUCTIVE TRUST, ALTHOUGH THE AGREEMENT BETWEEN BROTHER AND SISTER TO SHARE MOTHER'S ESTATE WAS NOT ENFORCEABLE UNDER THE STATUTE OF FRAUDS, THE COMPLAINT STATED CAUSES OF ACTION FOR PROMISSORY ESTOPPEL AND A CONSTRUCTIVE TRUST (FIRST DEPT))

CRIMINAL LAW, ATTORNEYS, IMMIGRATION.

DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds because he was not adequately warned of the deportation consequences:

Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that deportation was a possibility ... .

 

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see id.), and we hold the appeal in abeyance for that purpose. People v Rodriguez, 2018 NY Slip Op 07061, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

CRIMINAL LAW, ATTORNEYS, IMMIGRATION.

DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined that defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds. Although deportation was mandatory, defendant was told only that he may be deported:

Defendant was deprived of effective assistance of counsel when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that his plea would have "immigration consequences," would "impact his ability to stay in the country" and "will probably very well end up with [defendant] being deported from this country" ... .

 

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea ... , and we hold this appeal in abeyance for that purpose. People v Johnson, 2018 NY Slip Op 07072, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

CRIMINAL LAW, EVIDENCE.

WARRANTLESS ENTRY INTO DEFENDANT'S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant's conviction which stemmed from a violation of an order of protection, determined that the emergency exception to the warrant requirement did not apply and her motion to suppress should have been granted. The order of protection directed defendant to stay away from Thomas Collins. The police officer, Carmichael, after entering defendant's apartment without permission, found Collins hiding there:

We conclude that Carmichael's testimony established that there was not an objectively reasonable basis for him to believe that there was an ongoing emergency in defendant's apartment that required immediate assistance to protect life or property. Carmichael was aware that defendant was no longer incarcerated. There was no evidence that defendant's apartment had been forcibly entered, nor was there any other indication of an ongoing crime or emergency. The low, muffled sound that he heard and the faint light that was seen through the window were consistent with an occupant watching television, a reasonable activity at that hour of night. Moreover, Carmichael's testimony further established that the police may have been motivated to search defendant's apartment by the possibility of locating Collins there and arresting him. Carmichael confirmed that he was aware that there was an outstanding warrant for Collins' arrest. The police had been advised that Collins had been seen in the vicinity of defendant's apartment during the evening in question, and they considered the possibility that he was at her apartment in violation of the order of protection. After Carmichael handcuffed defendant, he reported by radio to the other officers on the scene that he had detained the "female subject," and, when he located Collins, he stated that he had detained "that other subject."

 

Further, even had Carmichael's initial entry been lawful, his subsequent search of defendant's apartment was not. A protective sweep is justified only when the police "have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene" ... . Upon entry, Carmichael found that the apartment was occupied by defendant — known by him to be the tenant entitled to occupy the apartment — who told him that she was watching television, denied that anyone else was present and made no request for assistance. Thus, the facts known to Carmichael did not reasonably support the belief that there was any danger to himself or to defendant. People v Sears, 2018 NY Slip Op 07197, Third Dept 10-25-18

CRIMINAL LAW (WARRANTLESS ENTRY INTO DEFENDANT'S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, WARRANTLESS ENTRY INTO DEFENDANT'S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (WARRANTLESS ENTRY INTO DEFENDANT'S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/SUPPRESS, MOTION TO, (WARRANTLESS ENTRY INTO DEFENDANT'S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))

CRIMINAL LAW, EVIDENCE, APPEALS.

PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT'S CONVICTION (THIRD DEPT).

The Third Department, reversing defendant's assault and criminal possession of a weapon convictions, determined that the People did not disprove the justification defense in this nonjury trial:

At sentencing, County Court stated that it rejected defendant's justification defense because it found that defense to be inconsistent with the multiple wounds on the victim's face, neck and body. However, "independently assess[ing] all of the proof" and considering the correctness of the court's factual determinations in the role of a second factfinder, as we must, we do not agree that these injuries are inconsistent with defendant's assertion that he had to swing the knife repeatedly to defend himself, as the victim continued to attack and punch him ... . More significantly, the severity of the victim's injuries does not provide the missing proof that defendant could have retreated with complete safety before he used deadly physical force or even during the knife fight, when he and the victim both testified that the victim continued to throw punches. It was the People's burden to prove "to the same degree as any element of the crime charged" that defendant's actions were not justified ... . Exercising our factual review power and viewing the evidence in a neutral light, we find that the People did not do so ... . People v Hernandez, 2018 NY Slip Op 07196, Second Dept 10-24-18

CRIMINAL LAW (PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT'S CONVICTION (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, JUSTIFICATION, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT'S CONVICTION (THIRD DEPT))/JUSTIFICATION (CRIMINAL LAW, EOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT'S CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, NONJURY TRIAL, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT'S CONVICTION (THIRD DEPT))

CRIMINAL LAW, EVIDENCE, VEHICLE AND TRAFFIC LAW.

IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT'S DRIVER'S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT).

The Second Department, reversing defendant's conviction for aggravated unlicensed operation of a motor vehicle, determined that the testimony of a supervisor from the NYS Department of Motor Vehicles (DMV), alleging that notice of the revocation of defendant's license was mailed to defendant, violated defendant's right to confront the witnesses against him because the testimony was not based upon first hand knowledge:

To establish that the defendant operated a motor vehicle while knowing that his license was suspended or revoked, the People presented the testimony of a supervisor of the New York State Department of Motor Vehicles (hereinafter the DMV), who testified about the DMV's process of mailing notices of revocation and/or suspension. The DMV supervisor testified that an order of suspension was mailed to the defendant in 1999, and she read into the record an affidavit, sworn to in 2012, which detailed the procedures related to mailing these notices and also stated, "upon information and belief," that the notice was in fact mailed to the defendant in 1999. However, the DMV supervisor herself admittedly had no personal knowledge of the mailing to the defendant, and the People did not produce the original 1999 affidavit of mailing.

 

The Supreme Court should not have permitted this testimony, as it violated the defendant's right of confrontation (see CPLR 4518[a]; CPL 60.10;... ) The defendant was never given the opportunity to cross-examine a DMV employee who was directly involved in sending out suspension notices and who had personal knowledge of defendant's driving record. The DMV supervisor's testimony was improperly allowed to establish an essential element of the crime. The court, in permitting this testimony, failed to ensure that the defendant's Sixth Amendment right of confrontation was protected ... . People v Stokeling, 2018 NY Slip Op 07158, Second Dept 10-24-18

CRIMINAL LAW (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT'S DRIVER'S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT'S DRIVER'S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT)/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT'S DRIVER'S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT'S DRIVER'S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT'S DRIVER'S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/VEHICLE AND TRAFFIC LAW  (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT'S DRIVER'S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))

CRIMINAL LAW, EVIDENCE, ATTORNEYS.

DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant's convictions for two separate robberies which were tried together, determined that one of the lineup identification procedures violated defendant's right to counsel. The detective who conducted the lineup was aware defendant had an attorney but did not notify the attorney of the impending lineup:

The detective who conducted the lineup violated the defendant's right to counsel by failing to notify counsel of the lineup and afford counsel a reasonable opportunity to attend. As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup ... . There are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation. That occurs when the defendant is, in fact, represented in the matter, and the police know, or can be charged with knowledge of that representation ... . The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney. In either case, "[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant's lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made" ... . ...

... [T]he paramount consideration is whether there is a reasonable possibility that the jury's decision to convict on the tainted counts influenced its verdict of guilt on the remaining counts in a meaningful way ... . Here, we cannot conclude from the evidence presented that there was no such reasonable possibility. People v Johnson, 2018 NY Slip Op 07147, Second Dept 10-24-18

CRIMINAL LAW (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/RIGHT TO COUNSEL (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/LINEUPS (RIGHT TO COUNSEL, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))

CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA).

DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).

The Second Department determined there defendant was not given the opportunity to be heard on whether he should be designated a sexual predator and deleted the designation:

... [T]he Supreme Court erred in, sua sponte, designating the defendant a sexual predator. Neither the Board of Examiners of Sex Offenders nor the People had recommended such a designation, and the defendant was never afforded an opportunity to be heard on the issue of whether he should be so designated (see Correction Law § 168-n[3]...). Accordingly, we modify the order so as to delete the provision thereof designating the defendant a sexual predator. People v Medina, 2018 NY Slip Op 07162, Second Dept 10-24-18

CRIMINAL LAW (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEXUAL PREDATOR (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))

FAMILY LAW.

SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER'S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT).

The Second Department determined: (1) under the statutory law in force at the time, a finding of severe abuse could not be made against anyone other than a legal parent; and (2), the presumption that the mother's  husband (John F) is the father of the children was conclusively rebutted by the allegation in the DSS petition that George R was the biological father of the children:

Although anyone legally responsible for a child's care may be the subject of a finding of abuse (see Family Ct Act § 1012[a]), at the time of the entry of the order appealed from, a finding of severe abuse could only be made against a legal parent... . Here, since it is undisputed that George R. was not Alexandria F.'s legal parent, the Family Court should not have found that he severely abused Alexandria F. ... 

... [W]e disagree with the Family Court's determination that George R. should not be treated as the father of Adalila R. and George W. R. Since the mother was married to John F. when those two children were born, there is a presumption that John F. was their father (see Domestic Relations Law § 24[1]; Family Ct Act § 417 ...).

Here, DSS alleged in the petitions relating to Adalila R. and George W. R. that George R. is the father of those two children. These allegations constituted formal judicial admissions that are conclusive of the facts admitted in these proceedings ... . Matter of Alexandria F. (George R.), 2018 NY Slip Op 07122, Second Dept 10-24-18

FAMILY LAW (SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER'S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT))/SERVER ABUSE (FAMILY LAW, SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER'S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT))

FAMILY LAW, CONTRACT LAW.

STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined that a stipulation allowing the mother to relocate cannot be put into effect absent a hearing examining the best interests of the children:

On March 13, 2014, the parties executed a custody stipulation that was so-ordered and incorporated, but not merged, into their judgment of divorce. The parties agreed to joint custody of their two children, with the mother being the primary residential custodian. The stipulation permitted the mother to relocate within 55 miles of her current residence without the express written permission of the father or a court order. ...

The Family Court should not have granted the relief requested by the mother and summarily dismissed the petition pursuant to CPLR 3211(a)(1). "No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest" ... . Thus, although the parties agreed in their stipulation that the mother could relocate to within 55 miles of her residence in Mamaroneck, such an agreement is not dispositive, but rather, is a factor to be considered along with all of the other factors a hearing court should consider when determining whether the relocation is in the best interests of the children ... . Further, the father made an evidentiary showing that the mother's proposed move might not be in the children's best interests ... . Where, as here, facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is require ... . Matter of Jaimes v Gyerko, 2018 NY Slip Op 07125, Second Dept 10-24-18

FAMILY LAW (CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/CUSTODY (RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/RELOCATION (FAMILY LAW, CUSTODY, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, STIPULATION, CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/STIPULATIONS (FAMILY LAW, CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))

FORECLOSURE, EVIDENCE, CIVIL PROCEDURE, DEBTOR-CREDITOR.

PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff did not submit admissible proof that defendant was in default. The evidence did not meet the business records exception to the hearsay rule. The court also held that a nonparty's motion to intervene was properly denied as untimely and the Judiciary Law 489 affirmative defense was properly struck. Judiciary Law 489 prohibits buying another's debt for the purpose of bringing a court action, but debts exceeding $500,000 are exempt. The debts purchased here exceeded $500,000:

The determination to deny Fulton Holdings' motion for leave to intervene in the action was a provident exercise of discretion. "Intervention under CPLR 1012 and 1013 requires a timely motion" ... . Here, Fulton Holdings' motion was not timely, as it was not made until approximately 14 months after Fulton Holdings had notice that the foreclosure action was pending ... . ...

 

Here, the plaintiff failed to submit evidence of default in admissible form. To evince the mortgagor's default, the plaintiff submitted the affidavits of Igor Fleyshmakher, the plaintiff's managing member, and Frank Quintana, the president of 179 Court Street Holding Corp. (hereinafter 179 Court), a prior holder of the mortgage. Fleyshmakher and Quintana both attested to the date of the last payment allegedly received on the mortgage. However, the plaintiff failed to demonstrate the admissibility, under the business records exception to the hearsay rule, of any records relied upon by Fleyshmakher and Quintana (see CPLR 4518[a]...). Neither Fleyshmakher nor Quintana laid a foundation for, or even identified, the records upon which they relied. Moreover, neither the plaintiff nor 179 Court acquired its interest in the mortgage until after the alleged default date. Thus, neither Fleyshmakher nor Quintana could have established the loan's payment history up to and including the date of default by relying on their respective employers' records. Neither Fleyshmakher nor Quintana asserted that they consulted or relied on the records of 179 Court's predecessor-in-interest. Under these circumstances, the plaintiff failed to establish, prima facie, the mortgagor's default ... . Fulton Holding Group, LLC v Lindoff, 2018 NY Slip Op 07096, Second Dept 10-24-18

FORECLOSURE (PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/EVIDENCE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/HEARSAY (BUSINESS RECORDS EXCEPTION, FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CPLR 4518 (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CPLR 1012, 1013 (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/DEBTOR-CREDITOR (JUDICIARY LAW 489, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/JUDICIARY 489 FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))

FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), EVIDENCE.

PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion for summary judgment should have been granted. Plaintiff did not provide sufficient proof demonstrating it provided the notice required by RPAPL 1304:

... [T]he defendant established his prima facie entitlement to judgment as a matter of law by submitting his own affidavit attesting that he had not received any notice pursuant to RPAPL 1304 ... . In opposition, the plaintiff submitted only a copy of the required notice, but failed to submit any evidence that the notice was mailed in the manner required by the statute. Specifically, the plaintiff did not submit "an affidavit of service, . . . proof of mailing by the post office, evincing that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]" ... , or "proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" ... . Thus, the plaintiff failed to demonstrate that it strictly complied with the requirements of RPAPL 1304, notwithstanding the label on the notice stating "Certified Article Number" and "Senders Record" and listing a 20-digit number on the top of the letter ... . Thus, since the plaintiff did not raise a triable issue of fact in opposition to the defendant's prima facie showing that the plaintiff failed to satisfy the condition precedent of proper service of RPAPL 1304 notice upon him ... . Deutsche Bank Natl. Trust Co. v Heitner, 2018 NY Slip Op 07090, Second Dept 10-24-18

FORECLOSURE (PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, NOTICE, PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT'S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))

INSURANCE LAW.

QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a concurrence, determined there was a question of fact whether the insurers failed to settle a multi-million dollar medical malpractice claim in bad faith. The facts are interesting but too detailed to fairly summarize here:

To establish bad faith in failing to settle a liability claim, the insured must show that "the insurer's conduct constituted a 'gross disregard' of the insured's interests — that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer"... . Stated otherwise, the "plaintiff must establish that the defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability than an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted" ... . It must be shown that "the insured lost an actual opportunity to settle the claim at a time when all serious doubts about the insured's liability were removed" ... . ...[I]t is necessary to consider all the facts and circumstances in gauging whether an insurer acted in bad faith in addressing settlement. Key factors include the plaintiff's likelihood of success, the potential magnitude of a verdict and the corresponding financial burden on the insured and the information available to the insurer at the time the settlement demand was made ... . In reviewing these factors in the procedural context of a motion for summary judgment, we review the evidence in a light most favorable to the nonmoving party ... . * * *

It was clear from the inception of this case that if a jury held [the doctor] accountable, the verdict would exceed the total coverage — and that, indeed, was the [plaintiffs'] settlement position throughout. As such, it was incumbent upon [the insurers] to be fully engaged and attentive to the case, particularly after the jury highlighted question No. 6 (re: cost of future care) on the verdict sheet. To suggest that there was not enough time to respond is unpersuasive. This was crunch time, the stakes were unquestionably high and [the insurers] had a contractual responsibility to fulfill.  Healthcare Professionals Ins. Co. v Parentis, 2018 NY Slip Op 07224, Third Dept 10-25-18

INSURANCE LAW (QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT))/BAD FAITH (INSURANCE LAW, QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT))/SETTLEMENTS (INSURANCE LAW, BAD FAITH, QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT))

LABOR LAW-CONSTRUCTION LAW.

QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF'S FALL, DEFENDANT'S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant's motion for summary judgment on the Labor Law 240 (1) cause of action should not have been damaged. Plaintiff fell when his A-frame ladder, which was in the closed position, slipped. There existed questions of fact whether using the A-frame ladder in the closed position was the sole proximate cause of the fall:

"A worker's decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident" ... . Here, the defendants failed to satisfy their prima facie burden of establishing that the plaintiff's actions were the sole proximate cause of his accident. Specifically, the defendants failed to eliminate all triable issues as to whether the ladder could have been placed in a manner that would have allowed the plaintiff to safely perform the work... , nor did the defendants establish that the plaintiff used the ladder in such a manner without the tacit approval of his supervisor ... . Gillett v City of New York, 2018 NY Slip Op 07102, Second Dept 10-24-18

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF'S FALL, DEFENDANT'S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF'S FALL, DEFENDANT'S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF'S FALL, DEFENDANT'S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

MENTAL HYGIENE LAW, CRIMINAL LAW, EVIDENCE.

PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN 'OTHER SPECIFIED PARAPHILIC DISORDER' (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT).

The Third Department determined petitioner sex offender was entitled to a Frye hearing to determine the efficacy of an "other specified paraphilic disorder" (OSPD) diagnosis:

... OSPD (nonconsent) is the primary diagnosis upon which respondent relied to demonstrate that petitioner suffered from a mental abnormality under Mental Hygiene Law article 10. Citing the lack of specific diagnostic criteria, petitioner contends that this diagnosis is "junk science" that has not gained general acceptance in the scientific community and, therefore, cannot support a finding of mental abnormality. In support of his application for a Frye hearing, petitioner submitted, among other things, Singer's affidavit, scientific literature in the form of professional articles discussing the controversial nature of PNOS (nonconsent) — the predecessor diagnosis of OSPD (nonconsent) — and questioning its general acceptance in the relevant scientific community, as well as various trial court decisions that, following Frye hearings, have concluded that OSPD (nonconsent) is not a generally accepted diagnosis within the relevant psychiatric and psychological communities. In opposition, respondent tendered an attorney's affidavit and three trial court decisions — two of which concluded that no Frye hearing was necessary — but no scientific literature or professional affidavits. Although we recognize that OSPD is a defined and recognized diagnosis in the Fifth Edition of the American Psychological Association's Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM) and that the Court of Appeals has recognized that PNOS — OSPD's predecessor diagnosis — is sufficient to support a finding of mental abnormality (see State of New York v Shannon S., 20 NY3d 99, 107 [2012], cert denied 568 US 1216 [2013]), we note that Shannon S. did not determine the issue presently before us, i.e., whether the OSPD (nonconsent) diagnosis has received general acceptance in the psychiatric and psychological communities ... . * * *

... [G]iven the controversial nature of the OSPD (nonconsent) diagnosis, on the record before us, we conclude that Supreme Court's denial of petitioner's application for a Frye hearing was improper. Accordingly, we remit this matter to Supreme Court to conduct a Frye hearing, addressing the question of whether the diagnosis of OSPD (nonconsent) has achieved general acceptance in the psychiatric and psychological communities ... . Matter of Miguel II. v State of New York, 2018 NY Slip Op 07210, Third Dept 10-25-18

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL CONFINEMENT, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN 'OTHER SPECIFIED PARAPHILIC DISORDER' (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN 'OTHER SPECIFIED PARAPHILIC DISORDER' (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN 'OTHER SPECIFIED PARAPHILIC DISORDER' (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/FRYE HEARING (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN 'OTHER SPECIFIED PARAPHILIC DISORDER' (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))

MUNICIPAL LAW.

TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a local town code provision (called a Holdback Provision) was not authorized by the Town Law and was therefore unenforceable. The town code provision authorized the town to hold back on issuing building permits in plaintiff builder's subdivision until certain required infrastructure components (roads, lights, etc.) were completed:

Towns and municipal governments lack inherent power to enact zoning or land use regulations ... . "They exercise such authority solely by legislative grant" ... . Through the enactment of Town Law article 16, the New York State Legislature has conferred upon municipalities a wide variety of powers "to zone the town into districts to regulate its growth and development, to establish procedures for adoption and modification of local zoning regulations, to review and enforce zoning decisions and to establish an official map"... . Town Law § 277(9) is the enabling statute which authorizes the Town to obtain enumerated forms of security sufficient to cover the full cost of infrastructure and other required improvements in case a developer fails to finish work. ...

Here, a plain reading of Town Law § 277 establishes that (1) it has no express provision authorizing the Lot Holdback Provision set forth Town Code § 254-18B, (2) pursuant to the rules of statutory construction, the express provisions of Town Law § 277 must be construed to exclude provisions such as those in Town Code § 254-18B which are not contained in § 277 ... , and (3) it has no provision from which the Lot Holdback Provision of Town Code § 254-18B can be implied ... . Thus, Town Code § 254-18B is inconsistent with the plain language of Town Law § 277(9), which expressly sets forth the manner in which a developer can be required to provide financial security to ensure the completion of the installation of required infrastructure and other mandatory improvements.

When a town or municipality acts without legislative delegation, its acts are ultra vires and void ab initio ... . Joy Bldrs., Inc. v Town of Clarkstown, 2018 NY Slip Op 07110, Second Dept 10-24-18

MUNICIPAL LAW (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))/TOWN CODE  (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))/TOWN LAW  (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))

NEGLIGENCE, EDUCATION-SCHOOL LAW.

NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT).

The Second Department determined that the negligent supervision cause of action against the school district was properly dismissed. Infant plaintiff, a student who had a one-on-one aide, was injured when she went to the bathroom unaccompanied. She caught her finger in a bathroom door:

While a school district is not an insurer of the safety of its students, since it cannot reasonably be expected to continuously supervise and control all of their movements and activities, it has a duty to adequately supervise the students in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ... . Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the school defendant is warranted ... . Here, the District made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any alleged inadequacy in the level of supervision was not a proximate cause of the accident ... . Hinz v Wantagh Union Free Sch. Dist., 2018 NY Slip Op 07105, Second Dept 10-24-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))

NEGLIGENCE, LANDLORD-TENANT.

LANDLORD'S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT).

The First Department determined defendant landlord's motion for summary judgment in this third party assault case was properly denied. Infant plaintiff was assaulted in an alleyway outside the building where tenants left their trash. There was a question of fact whether the assault was foreseeable. The alternative theory of liability, that defendant failed to maintain safety measures voluntarily undertaken in the alleyway, was rejected because plaintiff did not demonstrate reliance on those measures:

Contrary to defendant's contention, the alleyway, in which tenants of the building deposited their trash, was not a public area where defendant had no duty to maintain minimal security precautions ... . Issues of fact as to the foreseeability of the assault are presented by the record evidence of previous criminal activity in or at the building, including drug dealing, multiple burglaries, including one at gunpoint, and gunshots and the discovery of empty shell casings outside the building . Issues of fact exist as to whether the gate to the alleyway was maintained in a closed and locked condition and whether there was sufficient lighting in the alleyway. Issues of fact also exist as to whether the open gate or any insufficiency in the lighting was a proximate cause of the assault ... . Accordingly, considering the neighborhood's susceptibility to incidents of violent crime, we are unable to hold as a matter of law that defendant upheld its common law duty to maintain the premises in a safe and secure manner.

 

However, we reject plaintiff's alternative theory that defendant is liable to the extent that it voluntarily provided a locked gate, lighting, or video monitoring for the alleyway, and then negligently maintained those items. Even were we to conclude that defendant created a duty by introducing such security measures, plaintiff failed to demonstrate that she was lulled into a false sense of security such that she neglected to take precautions that she would have otherwise taken in the absence of those measure ... . Sanchez v Morris Ave. Equities Corp., 2018 NY Slip Op 07071, First Dept 10-23-18

NEGLIGENCE (LANDLORD-TENANT, THIRD PARTY ASSAULT, LANDLORD'S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, LANDLORD'S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))/THIRD PARTY ASSAULT (LANDLORD-TENANT, NEGLIGENCE, LANDLORD'S SUMMARY JUDGMENT MOTION PROPERLY DENIED IN THIS THIRD PARTY ASSAULT CASE, PLAINTIFF TENANT WAS ASSAULTED IN AN ALLEYWAY WHERE TENANTS LEFT THEIR TRASH (FIRST DEPT))

NEGLIGENCE, LANDLORD-TENANT.

LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT).

The Second Department determined the negligence action against the landlord in this third party assault case was properly dismissed. The plaintiff tenant was assaulted in the vestibule of the building. The landlord demonstrated the attack was not foreseeable because there had been no similar assaults in the past:

The plaintiff was assaulted in the vestibule of a residential building in which she lived. The vestibule was accessed through an unlocked front door. A second door leading into the building's lobby was locked, and there was an intercom buzzer system in the vestibule that permitted residents to control access to the building. The perpetrator of the assault was inside the vestibule when the plaintiff entered the building. ...

"Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person"... . "To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected" ... . However, "the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location"... .

 

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it lacked notice of any prior occurrences of the same or similar criminal activity at or near the subject premises ... . George v 855 Ocean Ave., LLC, 2018 NY Slip Op 07100, Second Dept 10-24-18

NEGLIGENCE (LANDLORD-TENANT, THIRD PARTY ASSAULT, LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/THIRD PARTY ASSAULT (NEGLIGENCE, LANDLORD-TENANT, LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/ ASSAULT, THIRD PARTY (NEGLIGENCE, LANDLORD-TENANT, LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))

NEGLIGENCE, LANDLORD-TENANT.

OUT-OF-POSSESSION LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant out-of-possession landlord's motion for summary judgment in this slip and fall case was properly denied. Plaintiff slipped and fell on water which appeared to be coming from the bathroom door in the leased premises:

An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a "duty imposed by statute or assumed by contract or a course of conduct" ... . Here, the plaintiff alleged the violation of a duty imposed by Administrative Code of the City of New York § 28-301.1, which provides that the owner of a building "shall be responsible at all times to maintain the building and its facilities and all other structures regulated by this code in a safe and code-compliant manner" ... .. The defendant failed to meet its prima facie burden of demonstrating that it completely relinquished possession and control of the basement area of the building, such that it cannot be held liable under that Administrative Code provision for injuries caused by a defective condition therein ... . Nieves v Pennsylvania, LLC, 2018 NY Slip Op 07134, Second Dept 10-24-18

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD'S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

NEGLIGENCE, LEGAL MALPRACTICE, ATTORNEYS.

COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT).

The Second Department determined the legal malpractice cause of action properly survived a motion to dismiss, but the Judiciary Law 487 cause of action should have been dismissed because there was no allegation of intentional as opposed to negligent conduct:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession' and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ... . "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" ... 

 

Here, contrary to the defendant's contention, the complaint adequately alleged the required element of causation. Specifically, the complaint, construed liberally... , alleged that the defendant proximately caused the plaintiff damages by, among other things, negligently failing ... to assert a specific performance cause of action, on which the plaintiff would have prevailed. ...

 

However, the Supreme Court should have directed dismissal of the second and third causes of action, alleging violations of Judiciary Law § 487. Under Judiciary Law § 487, an attorney who "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" is liable to the injured party for treble damages. "[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct"... .

 

... [Plaintiff's] allegations do not set forth any facts from which an intent to deceive him could be inferred ... . Aristakesian v Ballon Stoll Bader & Nadler, P.C., 2018 NY Slip Op 07084, Second Dept 10-24-18

NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/JUDICIARY LAW (ATTORNEYS, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/ATTORNEYS (MALPRACTICE, JUDICIARY LAW, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))

NEGLIGENCE, MUNICIPAL LAW.

UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant homeowner was entitled to summary judgment in this sidewalk slip and fall case. Defendant was exempt from liability under the NYC Administrative Code and that defendant's fence with a gate did not constitute a special use of the sidewalk:

In this trip and fall case involving an uneven sidewalk, defendant Ortiz's testimony that she lived in a one-family home adjacent to the sidewalk was sufficient competent evidence to make a prima facie showing that she qualified for the exemption provided at Administrative Code of City of NY § 7-210(b) ... .

 

In opposition, plaintiff offers no evidence to the contrary, and no authority for her proposition that a party seeking to demonstrate that their home is a one-, two- or three-family home exempt from § 7-210 must produce a deed.

 

Nor is defendant Ortiz liable based on a theory that her fence, containing a gate, constituted a special-use. "The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others. . . . Special use cases usually involve the installation of some object in the sidewalk or street or some variance in the construction thereof" ... . There is no evidence in the record that defendant's fence is built on or in the sidewalk. That the gate, which defendant testified is "almost never" used, would permit herself and others to enter her property does not constitute a special use, as those using it would merely walk across the sidewalk, a use not "unrelated to the public use" ... . Moreover, as the defect in the sidewalk is adjacent to defendant's gate, not in front of it, it was plaintiff's burden to demonstrate that this alleged "special use" caused or contributed to the defect ... . Plaintiff offered no such evidence. Hernandez v Ortiz, 2018 NY Slip Op 07075, First Dept 10-23-18

NEGLIGENCE (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/MUNICIPAL LAW (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SLIP AND FALL (UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, UNDER THE NYC ADMINISTRATIVE CODE HOMEOWNER IS EXEMPT FROM LIABILITY IN THIS SIDEWALK SLIP AND FALL CASE, FENCE AND GATE DID NOT CONSTITUTE A SPECIAL USE OF THE SIDEWALK BY THE HOMEOWNER (FIRST DEPT))

NEGLIGENCE, MUNICIPAL LAW.

DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER'S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY'S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant property owner's (Reda's) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the area where plaintiff fell was in a designated bus stop, where the city would be responsible, or in an area the NYC Administrative Code requires that defendant maintain:

Plaintiff alleges that she tripped and fell over a gap between flagstones on a public sidewalk abutting property owned by Reda, and south of a bus shelter maintained by defendant City. Under Administrative Code of City of NY § 7-210, an abutting property owner has a duty to maintain the public sidewalk ... , but the City continues to be responsible for maintaining any part of the sidewalk that is "within a designated bus stop location" ... .

 

In support of her motion for summary judgment, Reda submitted evidence, including photographs showing where plaintiff fell near a bus shelter and next to a yellow-marked curb, and the City's admission that it owns the bus stop pole shown in a photograph. However, absent any applicable statute or any evidence defining the parameters of a bus stop, a triable issue of fact exists as to whether the part of the sidewalk where plaintiff fell is within a designated bus stop that the City is required to maintain ... . McCormick v City of New York, 2018 NY Slip Op 07175, First Dept 10-25-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER'S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY'S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/MUNICIPAL LAW (SIDEWALKS, BUS STOP, SLIP AND FALL, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER'S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY'S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SLIP AND FALL (MUNICIPAL LAW, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER'S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY'S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER'S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY'S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/BUS STOPS (MUNICIPAL LAW, SLIP AND FALL, DEFENDANT PROPERTY OWNER'S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER'S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY'S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))

NEGLIGENCE, VEHICLE AND TRAFFIC LAW.

PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiffs (the Rothchilds) were entitled to summary judgment in this rear-end collision case:

The record shows that the accident occurred in heavy, stop-and-go traffic, and DeSouza [defendant] testified to driving three-to-five miles per hour for at least 10 minutes prior to the accident, that he observed cars immediately in front of the Rothchilds' vehicle, and that he did not place his foot on his brake until his moving vehicle was two feet from the Rothchilds' back bumper. A driver is supposed to make reasonable use of his or her senses ... , and maintain a safe distance from other motor vehicles (see Vehicle and Traffic Law § 1129[a]...), which was not done in this case. Miller v DeSouza, 2018 NY Slip Op 07065, First Dept 10-23-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/TRAFFIC ACCIDENTS (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/REAR END COLLISIONS (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW  (TRAFFIC ACCIDENTS, REAR END COLLISIONS, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))

REAL ESTATE, CONTRACT LAW, DEBTOR-CREDITOR.

ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that, although plaintiff had defaulted on an installment land sale contract (re: the payment of school taxes), defendant was not entitled to specific performance and was not entitled to cancellation of the contract and retention of the installment payments:

"[T]he execution of a[n installment] contract for the purchase of real estate and the making of a part payment gives a contract vendee equitable title to the property and an equitable lien in the amount of the payment" ... . The contract vendor, in turn, "holds the legal title in trust for the vendee, subject to the vendor's equitable lien for the payment of the purchase price in accordance with the terms of the contract" ... . "Accordingly, the vendee under a land sale contract has acquired an interest in the property that must be extinguished before the vendor can resume possession, notwithstanding whether a provision in the contract provides that in the event of the vendee's uncured default . . ., the vendor has the right to declare the contract terminated and repossess the premises. A vendor may not enforce his [or her] rights by an action in ejectment, but must instead proceed to foreclose the vendee's equitable title or bring an action at law for the purchase price" ... .

Plaintiff, having made substantial payments to defendant pursuant to the installment land sale contract at issue, acquired equitable title to the property and an equitable lien in the amount of all payments made pursuant to the contract. Thus, despite plaintiff's default under the contract, defendant cannot obtain relief under the provision of the rider that provides for cancellation of the contract and forfeiture of all monies paid by plaintiff as liquidated damages... . Accordingly, to the extent that defendant's motion sought a declaration to that effect, it must be denied. Defendant's remedies are, instead, limited to foreclosing plaintiff's equitable title or bringing an action at law for the purchase price of the property, neither of which defendant has sought ... . Further, because defendant could not summarily cancel the contract and resume possession, plaintiff is entitled to continued possession of the premises during such time. Cloke v Findlan, 2018 NY Slip Op 07220. Third Dept 10-25-18

REAL ESTATE (ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))/CONTRACT LAW (REAL ESTATE, ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))/DEBTOR-CREDITOR (REAL ESTATE, INSTALLMENT CONTRACT, ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))/INSTALLMENT LAND SALE CONTRACT  (ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))

REAL PROPERTY LAW, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL).

AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that an accounting was required in this action for partition by joint tenants with the right of survivorship:

"Under New York law, joint tenancies may be severed by the court-ordered partition of the property that adjusts the rights of the parties and permits its sale if it appears that a partition cannot be made without great prejudice to the owners" ... . " [P]artition is an equitable remedy in nature and [the] Supreme Court has the authority to adjust the rights of the parties so each receives his or her proper share of the property and its benefits'" ... . Further, "because a partition action is equitable in nature, an accounting is a necessary incident thereto" ... . In light of the parties' dispute as to their respective entitlements to the proceeds from the sale of the property, an accounting is necessary to determine the parties' respective interests in the property ... . Further, insofar as the defendant does not dispute that the court should direct a partition and sale of the property, and since "an accounting is a necessary incident thereto" ... , the defendant failed to raise a triable issue of fact in opposition to the plaintiff's prima facie showing on his causes of action for an accounting and a partition and sale of the property ... . Khotylev v Spektor, 2018 NY Slip Op 07112, Second Dept 10-24-18

REAL PROPERTY LAW (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT)}/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT)}/PARTITION (AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT)}/JOINT TENANTS (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT)}/ACCOUNTING (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT)}

REAL PROPERTY LAW, FORECLOSURE.

REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS' MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff had the statutory right to bring an action to cancel of record certain assignments of mortgage:

The Supreme Court should not have granted those branches of the separate motions of the defendants, which were pursuant to CPLR 3211(a) to dismiss the causes of action to cancel of record the subject assignments of mortgage insofar as asserted against each of them on the ground that the plaintiffs lacked standing. Real Property Law § 329 provides that "[a]n owner of real property . . . may maintain an action to have any recorded instrument in writing relating to such real property . . . other than those required by law to be recorded . . . declared void or invalid, or to have the same canceled of record as to said real property." The plaintiffs, as owners of the subject property, have standing under Real Property Law § 329 to challenge the recorded assignments and seek to have them removed as a cloud on their title ... . Silverberg v Bank of N.Y. Mellon, 2018 NY Slip Op 07167, Second Dept 10-24-18

REAL PROPERTY LAW (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS' MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))/FORECLOSURE (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS' MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))/ASSIGNMENTS OF MORTGAGE (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS' MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))

REAL PROPERTY TAX LAW, TRUSTS AND ESTATES, CIVIL PROCEDURE.

TAX FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE'S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined the county's attempt to foreclose on tax liens was a nullity because the property owners had died and no representative of the estate had been appointed under the Surrogate's Court Procedure Act (SCPA) or the CPLR. The dissent argued that an in rem proceeding was appropriate:

"[I]t is well established that the dead cannot be sued" ... . Accordingly, "[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent's estate" ... . ...

Although the passage of time is no bar to the County's enforcement of tax liens (see RPTL 1160), as a general matter, "[t]he remedy for a [party] who faces the running of the Statute of Limitations under these circumstances is to petition the Surrogate's Court pursuant to SCPA 1002 for the appointment of . . . [a] personal representative of the estate" ... . The Surrogate's Court Procedure Act provides that, depending on the circumstances of the particular case, letters of administration may be granted to "persons who are distributees of an intestate"... , or to certain other individuals including "the public administrator, . . . the chief fiscal officer of the county, . . . the petitioner, in the discretion of the court, or . . . any other person or persons" ... .

 

Similarly, if the death of a party occurs after the commencement of a proceeding or action "and the claim for or against him [or her] is not thereby extinguished[,] the court shall order substitution of the proper parties" (CPLR 1015[a]). "A motion for substitution may be made by the successors or representatives of a party or by any party" (CPLR 1021 ...). ...

Our dissenting colleague contends, without citation to any positive authority, that in rem proceedings may be properly commenced and maintained against individuals who are known to be deceased so long as the County has provided those deceased individuals with notice of the proceeding in accordance with statutory law. We are unaware of any purpose such notice would serve to the deceased individuals, and unaware of "any method for serving with process those who have moved beyond the vale" ... . Matter of Foreclosure of Tax Liens v Goldman, 2018 NY Slip Op 07123, Second Dept 10-24-18

REAL PROPERTY TAX LAW TAX (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE'S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/TAX LIENS (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE'S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)/FORECLOSURE (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE'S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)).TRUSTS AND ESTATES (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE'S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/CIVIL PROCEDURE (TRUSTS AND ESTATES, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE'S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))