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January Page V

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Documentary Evidence Can Be Considered In CPLR 3211(a)(7) Motion to Dismiss/Disclaimer Not Specific Enough to Preclude Fraud Cause of Action


In a full-fledged opinion by Justice Renwick, with a concurring opinion by Justice DeGrasse, the First Department determined that arbitration could not be compelled in the absence of a specific, written agreement and a fraud cause of action against Goldman Sachs based upon the sale of mortgage-backed securities to the plaintiff hedge fund could go forward. The court concluded that documentary evidence submitted by the defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) was properly considered by Supreme Court, and the disclaimer relied upon by the defendant was not specific enough to warrant dismissal of the fraud cause of action:


A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim … When documentary evidence is submitted by a defendant "the standard morphs from whether the plaintiff has stated a cause of action to whether it has one"… . * * *


The law is abundantly clear in this state that a buyer's disclaimer of reliance cannot preclude a claim of justifiable reliance on the seller's misrepresentations or omissions unless (1) the disclaimer is made sufficiently specific to the particular type of fact misrepresented or undisclosed; and (2) the alleged misrepresentations or omissions did not concern facts peculiarly within the seller's knowledge … . Accordingly, only where a written contract contains a specific disclaimer of responsibility for extraneous representations, that is, a provision that the parties are not bound by or relying upon representations or omissions as to the specific matter, is a plaintiff precluded from later claiming fraud on the ground of a prior misrepresentation as to the specific matter… . Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc, 2014 NY Sliip Op 00587, 1st Dept 1-30-14




Contract of Adhesion/Unconscionable-Contract Cause of Action Should Have Survived Summary Judgment


The Second Department determined a hearing was required on respondents’ motion to dismiss the cause of action which alleged a contract of adhesion.  The action was brought against the respondents-operators of “three-quarter houses” by residents who had committed their housing allowances to the operators only to find themselves (according to the complaint) “living in abject and overcrowded conditions with no support services on site:”


A contract of adhesion contains terms that are unfair and nonnegotiable and arises from a disparity of bargaining power or oppressive tactics'" … . " A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made'" … .


"In determining the conscionability of a contract, no set weight is to be given any one factor; each case must be decided on its own facts" … . "However, [in general, it can be said that] procedural and substantive unconscionability operate on a sliding scale; the more questionable the meaningfulness of choice, the less imbalance in a contract's terms should be tolerated and vice versa" … . " The determination of unconscionability is a matter of law for the court to decide'" … . " Where there is doubt . . . as to whether a contract is fraught with elements of unconscionability, there must be a hearing where the parties have an opportunity to present evidence with regard to the circumstances of the signing of the contract, and the disputed terms' setting, purpose and effect'" … . " However, [w]here the significant facts germane to the unconscionability issue are essentially undisputed, the court may determine the issue without a hearing'" … . "Thus, on a motion for summary judgment, [t]he question . . . then is whether the record presents an issue as to the existence of unconscionability which should not be resolved without a hearing'"… . * * *


…[T]he plaintiffs submitted … affidavits of residents who signed the agreements in question and who stated that they signed the subject agreements under conditions that were procedurally unconscionable. Under these circumstances, a hearing was warranted on the issue of unconscionability, and as such, summary judgment should have been denied… .  David v #1 Mktg Serv Inc, 2014 NY Slip Op 00477, 2nd Dept 1-29-14




Supreme Court’s Reliance On a Punctuation Error to Support Its Contract Interpretation Rejected


In a full-fledged opinion by Justice Andrias, the First Department reversed Supreme Court’s interpretation of a contract clause, finding the interpretation was based upon a typographical error:


…"[I]t is a cardinal principle of contract interpretation that mistakes in grammar, spelling or punctuation should not be permitted to alter, contravene or vitiate manifest intention of the parties as gathered from the language employed" …. . … "[I]t is untenable that the parties would have intentionally left the meaning of their agreement to such vagaries as placement and punctuation" … . Penguin Group (USA) v Time/Warner Retail Sales & Mktg Servs Inc, 2014 NY Slip Op 00469, 1st Dept 1-28-14





Answer Submitted Pro Se by Corporation Is a Nullity


The Second Department noted that a corporation must be represented by counsel and an answer submitted by a corporation pro se was a nullity:


…[T]he Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity, since a corporation must be represented by an attorney and cannot proceed pro se (see CPLR 321[a]…). Boente v Peter C Kurth Off of Architecture & Planning PC, 2014 NY Slip Op 00473, 2nd Dept 1-29-14





Parolees May Move for Resentencing Under the Drug Law Reform Act


In a full-fledged opinion by Justice Cohen, the Second Department determined that parolees are “in custody” within the meaning of the 2011 amendments to the Drug Law Reform Act and, therefore, parolees may move for resentencing under the act:


In 2011, a New York State budget enactment consolidated and modernized several state agencies and created new departments (see L 2011, ch 62). This legislation merged the New York State Department of Correctional Services and the New York State Division of Parole into a single agency, the New York State Department of Corrections and Community Supervision (see id.). At that time, CPL 440.46(1) was amended by changing "department of correctional services" to "department of corrections and community supervision," so that now "[a]ny person in the custody of the department of corrections and community supervision," otherwise qualified, could apply to be resentenced (CPL 440.46[1]). People v Brown, 2014 NY Slip Op 00524, 2nd Dept 1-29-14






No Reference to When Child-Pornography Images Downloaded/Therefore Consecutive Sentences Could Not Be Imposed


The Third Department determined that consecutive sentences could not be imposed for the downloading of child pornography without specific reference to the date and time of each download:


Consecutive sentences are authorized when "'the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct'" … .  The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession … .  While the accusatory instrument and defendant's plea allocution each specified the date and time upon which the images were retrieved from defendant's computer, there was no information regarding defendant's act of downloading the images.  Accordingly, consecutive sentences were not authorized in the absence of such information… . People v Pardy, 105529, 3rd Dept 1-30-14





Doctrine of Collateral Estoppel Applied In Civil Suit Alleging Sexual Abuse Where Defendant Pled Guilty to Offenses Described in the Civil Suit


The Second Department determined the doctrine of collateral estoppel applied where the issues raised in a civil suit, based upon allegations of sexual abuse to which the defendant pled guilty, were identical to the offenses described in the plea transcript. The doctrine, however, did not apply to the civil allegation of rape because the defendant did not plead guilty to rape:


"Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of his liability" … . The doctrine applies whether the conviction resulted from a plea or a trial … . "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action" … . "The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" … . Morrow v Gallagher, 2014 NY Slip Op 00489, 2nd Dept 1-29-14





Society Supporting Protection of Preservation Area Had Standing to Challenge Waiver Allowing Business to Operate in Area

The Second Department determined that the petitioners had standing to challenge the planning commission’s determination that the respondents should be granted a hardship waiver (Environmental Conservation Law 57-0121(10)) to continue a commercial landscaping and horticultural services business in a preservation area (Long Island Central Pine Barrens).  Richard Amper, in his capacity as Executive Director of the Long Island Barrens Society, Inc, opposed the granting of the waiver and brought the underlying Arcticle 78 proceeding.  The Second Department determined the respondent had met the requirements for a hardship waiver.  On the question of standing, the Second Department wrote:


…[T]he Supreme Court erred in holding that the petitioners lacked standing to challenge the determination. Whether an organization or association has standing involves the application of the three-pronged test set forth in Society of Plastics Indus. v County of Suffolk (77 NY2d 761). As pertinent to this appeal, the first prong of that test requires that the organization or association demonstrate that "one or more of its members would have standing to sue" as an individual (id. at 775). An individual has standing where he or she "would suffer direct harm, injury that is in some way different from that of the public at large" (id. at 774) and "the in-fact injury of which [he or she] complains . . . falls within the zone of interests,' or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted" (id. at 773 …). In Matter of Save the Pine Bush, Inc. v Common Council of City of Albany (13 NY3d 297), the Court of Appeals held that, in land-use and environmental cases, "a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing . . . to challenge government actions that threaten that resource" (id. at 301). Here, the petitioners established that Amper, in both his individual and professional capacities, uses and enjoys the Pine Barrens to a greater degree than most other members of the public. The fact that Amper lives some distance from the property in question is not dispositive (see id. at 305…). Further, the petitioners established that the threatened injury to Amper caused by development within the core preservation area of the Central Pine Barrens falls within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993 (L 1993, ch 262) (hereinafter the Act) … . Thus, Amper has standing to sue individually, and his standing satisfied the first prong of the test for the Society's organizational standing. The Society meets the second and third prongs of the organizational standing test, namely that its interests in the instant proceeding are germane to its purposes, and that "neither the asserted claim nor the appropriate relief requires the participation of the individual members." Therefore, the Society also has standing to challenge the Commission's determination (id. at 775). Matter of Long Is Pine Barrnes Socy, Inc v Central Pine Barrens Joint Planning & Policy Commn, 2014 NY Slip Op 00511, 2nd Dept 1-29-14




Parked Garbage Truck Furnished Condition for the Accident, But Was Not Proximate Cause of the Accident


The Second Department determined plaintiff’s complaint was properly dismissed because the accident was caused by plaintiff’s failure to see what he should have seen.  Plaintiff’s vehicle struck a garbage truck which was stopped partially in the roadway:


Although the issue of proximate cause is generally one for the jury …, liability may not be imposed upon a party who "merely furnished the condition or occasion for the occurrence of the event" but was not one of its causes … . Here, the defendants demonstrated their entitlement to judgment as a matter of law by presenting evidentiary proof that [defendant’s] conduct in stopping his truck partially in the roadway merely furnished the condition for the accident, but was not a proximate cause thereof… . Lee v D Daniels Contr Ltd, 2014 NY Slip Op 00487, 2nd Dept 1-29-14





There Can Be More than One Proximate Cause/Defendants Did Not Establish Freedom from Comparative Fault


The Second Department determined that Supreme Court should not have dismissed causes of action against a restaurant and a valet parking service.  Plaintiff’s decedent was struck and killed as she attempted to cross the street when defendant driver passed cars double-parked in front of the restaurant:


" There can be more than one proximate cause of an accident'" … . Thus, " the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law'" … . The issue of comparative negligence is generally one for the trier of fact … .


Contrary to the Supreme Court's determination, [the restaurant] and the [parking service] defendants each failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. On this record, even assuming, arguendo, that the actions of [the driver] and the decedent were negligent and were proximate causes of the accident, the evidence submitted by [the restaurant] and the [parking service] defendants, in support of their motion and cross motion, respectively, failed to eliminate all triable issues of fact as to whether those defendants were free from comparative fault….  Spadaro v Parking Sys Plus, Inc, 2014 NY Slip Op 00494, 1st Dept 1-29-14





“Undue Influence” and “Fraud” Criteria Explained Re: Objections to Probate of a Will


The Second Department, in affirming Surrogate’s Court’s dismissal of objections to the probate of a will, explained the criteria for a demonstration of “undue influence” and “fraud:”


"An objectant contesting the admission of a propounded instrument to probate based on the alleged exercise of undue influence must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist'" … . "An objectant seeking to establish that a will is the product of fraud has the burden of proving by clear and convincing evidence that the proponent of the will knowingly made false statements to the testator to induce him or her to make a will which disposed of property in a manner different from that in which the testator would otherwise have disposed of the property" … . The petitioners demonstrated their prima facie entitlement to judgment as a matter of law by showing, among other things, that the will had been duly executed, that the decedent possessed testamentary capacity, and that no undue influence or fraud had been exercised upon the decedent … . In opposition, the objectants failed to submit any evidence, beyond conclusory allegations and speculation, that the petitioners actually exercised undue influence over the decedent or that any fraudulent statements were made to the decedent, that the proponents of the made statements they knew to be false, or that any such statements caused the decedent to change his will… . Matter of Mele, 2014 NY Slip Op 00512, 2nd Dept 1-29-14



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