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



Allegation Release Procured by Fraud Precluded Dismissal of Complaint


In reversing Supreme Court’s dismissal of a slip and fall complaint which was founded on plaintiff’s signing a release, the First Department determined plaintiff had sufficiently alleged the release was procured by fraud:


Under the particular facts of this case, dismissal of the causes of action against the owners at the pleading stage was premature because plaintiff has alleged facts showing that her release may have been fraudulently obtained. To make out the basic elements of a fraudulent inducement claim, a plaintiff must establish that the reliance on the false representation was justified…. Whether the plaintiff could justifiably rely on the false representation is an issue of fact…. "The question of what constitutes reasonable reliance is always nettlesome because it is so fact-intensive"…. Moreover, "[w]here fraud . . . in the procurement of a release is alleged, a motion to dismiss should be denied"….  A plaintiff's reliance on a misrepresentation may be justified even if the plaintiff is represented by counsel … .  Gonzalez v 40 W Burnside Ave, LLC, 2013 NY Slip Op 04685, 1st Dept, 6-20-13



Amendment to Notice of Claim to Add Second Hospital Should Have Been Allowed


In reversing Supreme Court’s denial of petitioner’s application to amend the notice of claim (to add a second hospital) in a wrongful death action against the New York City Health & Hospitals Corporation, the Second Department wrote:


The petitioner’s decedent … was severely beaten on November 10, 2010. He was taken first to Queens Center Hospital and soon thereafter transferred to Elmhurst Hospital for surgery, which took place the same day. The decedent died at Elmhurst Hospital a few days later. The petitioner alleged that the respondents’ employees either did not begin the surgery soon enough or did not perform the surgery correctly. In either event, all of the acts and omissions alleged to have been negligent took place on November 10, 2010. The petitioner’s original notice of claim did not mention Elmhurst Hospital, but the petitioner timely sought leave to amend the notice of claim to, inter alia, add allegations regarding the treatment at Elmhurst Hospital. The Supreme Court denied the relief sought by the petitioner.  All of the conduct alleged to have been negligent took place at the two named hospitals on the same day. Moreover, the respondents’ records noted the decedent’s transfer from Queens Center Hospital to Elmhurst Hospital and detailed all of the treatment rendered that day. The respondents could not have been prejudiced by the proposed amendment of the notice of claim and, under the circumstances, there was no need to treat that amendment as the assertion of a new claim (see General Municipal Law § 50-e[6];…).  Matter of Bingsen Xu v New York City Health & Hosps Corp, 2013 NY 04601, 2nd Dept, 6-19-13





Liability Criteria Re: Tenant for Slip and Fall on Abutting Public Sidewalk Explained


In dismissing a cause of action in a slip and fall case against a tenant based upon the alleged condition of an abutting public sidewalk (in which a pair of metal doors leading to the basement of the rented premises were set), the Second Department explained the relevant legal principles as follows:

An owner or occupier of land which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition…, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting owner or lessee “ either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty’”…. To recover from a tenant which occupies premises abutting a sidewalk under the theory that the tenant has a special use of the sidewalk, the tenant must be in exclusive possession and control of the alleged special-use area…, and the plaintiff must demonstrate that the special use caused the defective condition which proximately caused his or her injuries….  O’Toole v City of Yonkers, 2013 NY Slip Op 04585, 2nd Dept, 6-19-13






Driver Stalled in Moving Lane of Traffic Not Negligent Re: Rear-End Collision


In finding Supreme Court should have dismissed the complaint against a driver (Mabella) who was struck from behind when stopped, due to mechanical trouble, in a moving lane of traffic, the Second Department explained:


Mabella established his prima facie entitlement to judgment as a matter of law through his submission of the deposition testimony of the parties, which demonstrates that his vehicle was fully stopped when it was struck in the rear by the Maldonado vehicle…. Although his vehicle was stopped in a moving lane of traffic, Mabella established that this was due to mechanical failure and not the result of any fault on his part…. The plaintiff and the defendants who opposed Mabella’s motion failed to raise a triable issue of fact regarding Mabella’s alleged fault in the happening of the accident. Prosen v Mabella, 2013 NY Slip Op 04589, 2nd Dept, 6-19-13






Significant Limitation Need Not Be Permanent to Constitute Serious Injury/Recent Physical Examination Is Not Prerequisite for Overcoming Summary Judgment


In reversing summary judgment granted to the defendant, the First Department noted that a significant limitation of use of a body function need not be permanent to constitute a serious injury within the meaning of Insurance Law 5102, and the First Department further explained that its precedent in this area should not be read to require a recent physical examination to overcome summary judgment:


…"[A] significant limitation [of use of a body function or system] need not be permanent in order to constitute a serious injury"…. Indeed, a " permanent consequential limitation' requires a greater degree of proof than a significant limitation', as only the former requires proof of permanence"…. "Insurance Law § 5102(d) does not expressly set forth any temporal requirement," although assessment of the limitation's significance does require consideration of its duration in addition to its extent and degree…. Therefore, the lack of a recent examination, while sometimes relevant, is not dispositive by itself in determining whether a plaintiff has raised a triable issue of fact in opposing a defendant's prima facie evidence under the "significant limitation" category.  Our decision in Townes v Harlem Group, Inc. (82 AD3d 583, 583-584 [1st Dept 2011]), should not be read to require a plaintiff to submit a recent examination as a necessary prerequisite to overcoming judgment as a matter of law in every instance of a claim under the "significant limitation" category. To the extent that the Townes Court did require a recent examination, it was due to the specific facts present in that case. Furthermore, the precedents that decision relied upon in requiring a recent examination do not specifically address the degree of proof necessary for a "significant limitation" claim as opposed to a "permanent consequential limitation" claim, instead conflating these two categories of serious injury…. Vasquez v Almanzar, 2013 NY Slip Op 94561, 1st Dept, 6-18-13






Custody Grant to Grandmother, Rather than Father, Okay


After mother had been found to have neglected her child, the Third Department, over a two-justice dissent, affirmed the grant of custody to grandmother, as opposed to father:


"It is fundamental that a biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an  extended period of  time  or other  extraordinary circumstances"….    The relevant factors to be considered in determining whether extraordinary circumstances exist include "'the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role'"… .   It is the nonparent's burden to establish extraordinary circumstances …and, when that burden is met, custody is determined based upon the child's best interests…. Matter of Marcus CC v Erica BB…, 514433, 3rd Dept, 6-20-13



Even though Mother Properly Awarded Custody, Father Should Have Been Awarded Decision-Making Authority Re: Education


In affirming Family Court’s award of sole custody to mother, the Second Department determined the father should have been awarded decision-making authority for the child’s education:


When joint custody is not possible because of the antagonistic relationship between the parties…, it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent…. The division of authority should be made in a manner intended to take advantage of the strengths and abilities of the noncustodial parent with respect to a particular dimension of child-rearing…. The Family Court's determination that it would be in the child's best interests to award the mother decision-making authority with respect to the child's education is not supported by a sound and substantial basis in the record. The father researched educational options for the subject child at every stage of his schooling. Once the child started school and began receiving homework assignments, the father supervised his homework, took part in school-related activities, and remained involved with his schooling at every stage. The father contacted the child's teachers regarding issues of concern. Jacobs v Young, 2013 NY Slip Op 04607, 2nd Dept, 6-19-13




Refusal to Allow DSS Workers Into Apartment Did Not Constitute Neglect


The Second Department reversed Family Court’s neglect determination against father.  The sole basis for the neglect finding was father’s refusal to let DSS Emergency Services workers into his apartment, which, the father explained, was based upon his fear the workers were not who they claimed they were:  The Second Department wrote:


"To establish neglect pursuant to section 1012(f)(i)(B) of the Family Court Act, the petitioner must prove, by a preponderance of the evidence, that (1) the child's physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and (2) the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship"…. Any determination that a child is a neglected child must be based on a preponderance of the evidence (see Family Ct Act § 1046;…).   Here, while the DSS properly sought access to Joshua under its order of supervision, it failed to prove at the fact-finding hearing by a preponderance of the evidence that the father neglected Joshua…. The evidence did not establish that Joshua's physical, mental, or emotional condition was impaired, or was in imminent danger of becoming impaired, as a result of the father's refusal to allow the DSS Emergency Services workers into his apartment. Moreover, the evidence established that the DSS Emergency Services workers found Joshua to be clean, healthy, and safe. Matter of Joshua J, 2013 NY Slip Op 04606, 2nd Dept, 6-19-13




Family Court Did Not Have Sufficient Information to Terminate Father’s Visitation


In finding that Family Court did not have enough information to determine whether the termination of father’s visitation was in the child’s best interest, in part because the court did not talk to the child in camera, the Second Department wrote:


A court may modify a visitation order upon a showing of changed circumstances and that modification is in the best interests of the child…. "A noncustodial parent is entitled to meaningful visitation, and denial of that right must be based on substantial evidence that visitation would be detrimental to the welfare of the child"…. A trial court's determination that the best interests of the child warrants termination of visitation will not be set aside unless it lacks a sound and substantial basis in the record…. "Although a child's wishes are not determinative, his or her wishes, age, and maturity should be given considerable weight" … . "Generally, visitation should be decided after a full evidentiary hearing to determine the best interests of the children. However, a hearing is not necessary where the court possesses adequate relevant information to make an informed determination of the children's best interests"….  Here, the Family Court did not possess adequate relevant information to determine whether the termination of the father's visitation with the child was in the child's best interest. For instance, although the attorney for the child indicated that the child, who was then 13 years old, did not wish to visit the father, the court failed to conduct an in camera examination of the child to ascertain the child's views.  Matter of Zubizarreta v Hemminger, 2013 NY Slip Op 04617, 2nd Dept, 6-19-13





Late Notice of Election, Caused by Law Office Failure, Should Have Been Allowed


The Second Department determined Surrogate’s Court should have granted decedent’s surviving spouse’s petition for leave to file a late notice of election against the decedent’s estate.  The spouse executed a notice of election which was served on the attorney for the executor, but, because of law office failure, was never filed with Surrogate’s Court:


EPTL 5-1.1-A(d)(1) sets forth the specific procedures to be followed in exercising a right of election. "If the spouse defaults in filing such election within the time provided in subparagraph (d)(1) of this paragraph, the surrogate's court may relieve the spouse from such default and authorize the making of an election . . . provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of the letters" (EPTL 5-1.1-A[d][2]). "An application for relief from the default and for an extension of time to elect shall be made upon a petition showing reasonable cause and on notice to such persons and in such manner as the surrogate may direct" (id.). Here, the surviving spouse demonstrated "reasonable cause" for her failure to timely file her notice of election by establishing, inter alia, that the delay was caused by law office failure, and she further established the absence of prejudice to any party (EPTL 5-1.1-A[d][2] … .  Matter of Sylvester, 2013 NY Slip Op 04613, 2nd Dept, 6-19-13






Doctrine of Practical Location Re: Boundary Line Dispute Explained


In a boundary-line dispute, the Second Department affirmed the dismissal of a counterclaim for a judgment declaring that a hedgerow and chain-link fence running parallel to the recorded boundary line was the legal line under the doctrine of practical location.  The Second Department explained the doctrine as follows:


Pursuant to the doctrine of practical location, "[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary . . . although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners"…. "[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled'"….  Jakubowicz v Solomon, 2013 NY Slip Op 04578, 2nd Dept, 6-19-13





Cause of Action for Fraud Based Upon Alleged Misrepresentation of Insurance Coverage Not Stated

The First Department determined plaintiff had not stated a cause of action for fraud.  The fraud cause of action was based upon defendant’s alleged misrepresentation that it had procured insurance to protect plaintiff against default by the largest subcontractor on the construction project.  It was not disputed that no such insurance was procured:

…[P]laintiff's fraud claim fails, because "merely alleging that the breach of a contract duty arose from a lack of due care will not transform a simple breach of contract into a tort"…. Plaintiff's "subjective claims of reliance on defendants' expertise" do not give rise to a "confidential relationship" whose "requisite high degree of dominance and reliance" existed prior to the alleged fraud…. Defendants had no advisory capacity as to plaintiff, and a special relationship of trust and confidence does not arise merely from an arm's-length business transaction…. In any event, to maintain a claim for fraud, plaintiff must show that its reliance on an alleged misrepresentation was justifiable or reasonable…. Here, plaintiff neither inquired of the subcontractor nor of the subguard provider if the subcontractor was covered… .Moreover, "[a]n actionable fraud claim requires proof that defendant made a misrepresentation of fact which was false and known to be false"…. A defendant's knowledge of an allegedly false representation ….must be established…, and plaintiff's affidavit stating that "it is inconceivable that [defendants] were unaware …was insufficient to establish scienter in this case. Waterscape Resort LLC v McGovern, 2013 NY Slip Op 04709, 1st Dept, 6-19-13





Ambiguity Precluded Summary Judgment Based Upon Guarantee

In determining the motion for summary judgment based upon a guarantee was properly denied because of ambiguity about which obligations were guaranteed, the Second Department explained:


A written agreement that is complete, clear, and unambiguous on its face must be enforced so as to give effect to the meaning of its terms and the reasonable expectations of the parties, and the court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities…. An agreement "is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion'"...  Furthermore, "[a] guaranty is a contract, and in interpreting it we look first to the words the parties used"…. "A guaranty must be construed in the strictest manner'”…, and a guarantor should be bound to the express terms of the written guaranty….  The document at issue, prepared by the plaintiff, is entitled "Personal Guaranty." The "Guarantor" is defined as "Tony Melillo." There is language in the body of the document indicating that the Guarantor is personally guaranteeing the payment and performance of the obligations of the "Importer." The "Importer" is variously defined in the document as either "Tony Melillo, LLC," or as "Tony Melillo." Thus, there is an ambiguity in the document as to whose obligations Melillo was guaranteeing.  Wider Consl, Inc v Tony Melillo, LLC, 2013 NY Slip Op 04597, 2nd Dept, 6-19-13



Victim’s Mother Should Not Have Been Allowed to Speak at Sentencing Because Defendant Convicted Only of Possession of Weapon, Not the Killing of the Victim/Failure to Inform Defendant of Pending Criminal Charges Against Prosecution Witnesses Not Error


The Third Department vacated defendant’s sentence because the victim’s mother was allowed to speak at sentencing.  Defendant was convicted only of possession of a weapon and not the killing of the victim.  The Third Department also noted that the failure to inform the defendant of pending charges against three prosecution witnesses was not a Rosario violation and was not otherwise required under the facts:


…[W]e find that County  Court abused  its discretion in allowing [the victim’s] mother  to speak at the sentencing hearing. There is no victim of the crime upon which defendant was convicted, as criminal possession of a weapon in the third degree requires only the possession of a firearm by  a person previously convicted of a crime … . Here, defendant's conviction upon this charge was supported by evidence wholly separate from the circumstances surrounding [the victim’s] death, as [a witness] testified that he had provided the handgun to defendant the day prior.It was thus error to allow the mother to give a statement in which she described defendant as a "killer" who "got away with murder." Moreover, we find merit in defendant's contention, though not preserved …, that despite promising it would not consider the mother's statement in imposing sentence, County Court may have considered the homicide charges when it sentenced him to the statutory maximum prison sentence of 3½ to 7 years.    As defendant contends, from a review of the sentencing transcript, it appears that the court improperly attributed guilt for [the victim’s] death to him.  *  *  *


The People's failure to inform defendant of criminal charges pending against three prosecution witnesses does not constitute a Rosario violation … .  We  further note that two of these individuals did not  testify at trial…, and  disclosure regarding the disorderly conduct charge against the third …was not statutorily required, as the People were unaware  of that recent charge at the time of trial (see CPL 240.45 [1] [c];…).    Contrary to defendant's contention, it is not reasonable under the circumstances here presented to impute knowledge of that pending charge to the entire District Attorney's office.  People v Sheppard, 103880/104958, 3rd Dept, 6-20-13



County Court Had Jurisdiction to Correct 1999 Sentence Which Did Not Include Period of Post-Release Supervision


The Third Department noted that County Court had jurisdiction to correct defendant’s 1999 sentence, which did not include post-release supervision:


Defendant's contention that County Court lacked jurisdiction due to an alleged unreasonable delay in correcting the sentence is without merit.    A delay in resentencing pursuant to Correction Law § 601-d is "not jurisdictional in nature and do[es] not deprive the court of the authority to correct an illegal sentence and resentence a defendant to a term of incarceration that includes a period of postrelease supervision"… . Furthermore, because defendant had not completed serving his initial sentence, the sentence was still subject to correction without invoking the protection against double jeopardy… .  People v Siler, 105042, 3rd Dept, 6-20-13



Irrelevant Information in Presentence Report Should Not Have Been Allowed In “Dangerous Sex Offender” Proceeding


In affirming a jury finding of mental abnormality and a finding that respondent was a dangerous sex offender requiring confinement, the First Department noted that the state’s expert should not have been allowed to testify about respondent’s admission in a presentence report that he was in the vicinity of a rape with which he was never charged:

The court erred in permitting the State expert to testify regarding respondent's admission, in a presentence report, that he was in the vicinity when a rape, with which he was never charged, was committed. While this statement was sufficiently reliable to show that respondent was in the vicinity of the rape, it was not reliable for the purpose of showing that he committed the rape…. Nevertheless, this error was harmless given the expert's reliance on two brutal sexual assaults to which respondent pleaded guilty and a third that he admitted committing, and given the court's appropriate limiting instructions, which served to dispel any prejudice …. Matter of State of New York v Charada T, 2013 NY Slip Op 04548, 1st Dept, 6-18-13



Motion to Withdraw Plea Should Have Been Granted


In determining defendant’s motion to withdraw his plea (which had been based in part upon the disposition of another indictment subsequently dismissed) should have been granted, the Second Department wrote:


Defendant pleaded guilty as part of a joint disposition of this case and another case, upon which he would be receiving a concurrent sentence of one year. However, the other indictment was dismissed, with finality, before defendant's sentencing. The court should have granted defendant's plea withdrawal motion, made on the ground that the plea had been induced by a promise that was ultimately unfulfilled…. The record establishes that defendant's plea was induced in large part by the court's specific representation that defendant was resolving two pending prosecutions. "It simply cannot be said on this record that defendant . . . would have pleaded guilty absent this assurance" …. As the dismissal of the other indictment amounted to a fundamental change in a "condition that induced [defendant's] admission of guilt" …, he was entitled to withdraw his plea ….  People v Bennett, 2013 NY Slip Op 04714, 1st Dept, 6-20-13



Error to Impeach Defendant Re: Failure to Offer Exculpatory Version to Police/ Error to Comment on Defendant’s Post-Arrest Silence (Harmless However)


The First Department determined it was error for County Court to have allowed the prosecutor to impeach defendant with his failure to present to the police an exculpatory version of events and to allow the prosecutor to comment upon defendant’s post-arrest silence:


County Court erred in allowing the prosecution, over the defendant’s objection, to impeach the defendant’s testimony with his failure to come forward to the police with an exculpatory version of the events, and in allowing the People to comment upon the defendant’s post-arrest silence in summation ….  People v Copp, 2013 NY Slip Op 04619, 2nd Dept, 6-19-13



“Mere Nervousness” Does Not Justify Police Inquiry/ More than “Mere Nervousness” in this Case


In finding that the police inquiry was proper because it was prompted by more than merely the defendant’s nervousness (which would not have been sufficient for a suspicion of criminality), the First Department explained:


The Court of Appeals' decision in People v Garcia (20 NY3d 317 [2012]) does not dictate a different result. In Garcia defendant's vehicle was pulled over because of a defective brake light. Aside from the faulty light, there was no indication of criminality by the occupants of the car; they merely appeared nervous and acted "furtive[ly]" by "stiffen[ing] up and "looking behind" upon being pulled over (id. at 320). The Court of Appeals agreed with this Court that a defendant's nervousness, without more, is not enough to give rise to a founded suspicion of criminality that allows for a common-law inquiry. Here, however, apart from seeming nervous, defendant was observed in a drug-prone neighborhood pulling what appeared to be an aluminum foil packet out of his pocket. The arresting officer suspected that the aluminum foil contained cocaine because cocaine is often packaged in that manner. And, unlike Garcia, where the alleged "furtive" behavior was consistent with nervousness over being pulled over, here, defendant's attempt to block the … officers' view of the shirt pocket in which he had placed the aluminum packet was consistent with someone in possession of a controlled substance attempting to avoid apprehension. These circumstances were sufficient to give the police the requisite founded suspicion to approach and question defendant.  People v Loretta, 2013 NY Slip Op 04562, 1st Dept, 6-18-13






Anonymous 911 Call Admitted Under Excited Utterance and Present Sense Impression Hearsay Exceptions


The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation:


The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication…. Contrary to the defendant's contention, the recording was also properly admissible as a present sense impression, since the caller's statements were sufficiently contemporaneous … and were corroborated by the evidence adduced at trial…. Additionally, the admission of the recording did not violate the defendant's right to confrontation. The call was nontestimonial in nature, since its primary purpose was to obtain an emergency response to the shooting….  People v Dockery, 2013 NY Slip Op 04621, 2nd Dept, 6-19-13



Text Messages Authenticated Because They “Made No Sense” Unless Defendant Sent Them


The Second Department determined the content of text messages was admissible (i.e., authenticated) because the messages “made no sense” unless sent by the defendant:


…[T]he text messages from the defendant to the complainant were properly admitted into evidence. Since the content of the text messages "made no sense unless [they were] sent by defendant" …, the text messages themselves were sufficient to authenticate that they were sent by the defendant … .  People v Green, 2013 NY slip Op 04623, 2nd Dept, 6-19-13






Preclusion Proper Remedy for Failure to Comply with Discovery Deadlines and Requests


The Second Department determined the failure to comply with discovery deadlines and provide good faith responses to discovery requests justified the preclusion of evidence:


“The failure to comply with deadlines and provide good-faith responses to discovery demands impairs the efficient functioning of the courts and the adjudication of claims’”… . The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court…. Here, the plaintiff made a clear showing that the defendants failed to comply with the compliance conference order …. Which required them to respond to certain requests made in the plaintiff’s supplemental notice of demand for production of documents …, since the defendants did not provide meaningful responses to those demands (see CPLR 3126[3];…). Further, the defendants’ willful and contumacious conduct in failing to meaningfully respond to those demands was reasonably inferred from the defendants’ repeated failures to respond to the plaintiff’s demands and the court’s compliance conference order without a reasonable excuse…. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting evidence at trial with respect to those items … .  HR Prince, Inc v Elite Envtl Sys, Inc, 2013 NY Slip Op 04576, 2nd Dept, 6-19-13



Dismissal of Complaint “With Prejudice” Did Not Require Dismissal of Second Complaint


Even though a complaint had ostensibly been dismissed “with prejudice” because the plaintiff did not have the capacity to sue, a subsequent complaint brought after plaintiff gained capacity to sue could not be dismissed pursuant to res judicata or collateral estoppel:


The record makes clear that, notwithstanding its denomination of the dismissal of the first action as "with prejudice," the Supreme Court did not intend to preclude the plaintiff from commencing a new action once he acquired the capacity to sue, which he purportedly lacked when he commenced the first action (see CPLR 3211[a][3]). Consequently, as the Supreme Court stated in the order appealed from, the dismissal of the first action was not a final judgment on the merits and it was not preclusive, under either res judicata or collateral estoppel, of claims or issues in the present action …. Thus, the court properly granted that branch of the plaintiff's motion which was to dismiss the affirmative defenses of res judicata and collateral estoppel. Brown v Lutheran Med Ctr, 2013 NY Slip Op 04568, 2nd Dept, 6-19-13






Town Law Applies to Fire District Election


The Second Department explained that the Town Law, not the Election Law, controls in a fire district election.  The Town Law, unlike the Election Law, does not require that a voter whose registration status cannot be immediately verified provide an affidavit he or she is duly registered to vote. The issue was important because the fire commissioner election was won by one vote and the voter whose status could not be immediately verified did not provide an affidavit:


Town Law § 175-a requires voters in fire district elections to be duly registered to vote (see Town Law § 175-a). However, Town Law § 175-a does not require a voter whose voter registration status cannot be immediately verified to provide an affidavit stating that he or she is duly registered to vote. The Election Law, in contrast, does contain such a requirement (see Election Law § 8-302[e][ii]). Specific Election Law provisions, however, do not apply to fire district elections unless the Town Law makes them specifically applicable …. The Town Law does not reference Election Law § 8-302 in its provisions governing fire district elections, and, as such, the affidavit required under that statute was not required here.  Matter of Buechele v Fairview Fire Dist, 2013 NY Slip Op 04603, 2nd Dept, 6-19-13




Dismissal of Labor Law 240, 241 and 200 Actions


In affirming the dismissal of Labor Law causes of action against a defendant who was not an owner, contractor or statutory agent, and who did not supervise or control work performance, the Second Department explained the relevant principles:


Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law §§ 240[1], 241[6];…). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured…. Similarly, where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 or pursuant to the principles of common-law negligence unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work .   Medina v RM Resources, 2013 NY Slip Op 04582, 2nd Dept, 6-19-13




Alleged Failure to Secure Mirror Which Fell During Removal Required Jury Charge on “Falling Objects” Theory


The Second Department determined Supreme Court erred when it did not charge the jury with Labor Law 240(1) as it applies to falling objects.  The plaintiff was injured when removing a mirror from the ceiling of a shower stall:


…[T]he trial court erred in failing to charge the jury in connection with Labor Law § 240(1) as it applies to falling objects, such as the mirror in this case. "[L]iability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell'"…. Moreover, whether the statute applies in a falling object case "does not . . . depend upon whether the object has hit the worker" but "whether the harm flows directly from the application of the force of gravity to the object"….  Here, the plaintiff contended that the accident occurred not only due to the wobbly ladder, but also because the mirror was not properly secured during the removal process, thus causing it to fall. While the object that fell was to be removed as part of the project, the location in which that item was situated and the lack of any device to protect the worker directly below it from a clear risk of injury raise a factual issue as to whether the object required securing for the purposes of the undertaking… .  Saber v 69th Tenants Corp, 2013 NY Slip Op 04591, 2nd Dept, 6-19-13






Legal Malpractice Action Based Upon Course of Action Taken in Immigration Proceedings Reinstated


In a full-fledged opinion by Justice Manzanet-Daniels, the First Department reinstated a cause of action for legal malpractice in an immigration case.  The complaint alleged a law firm followed an unreasonable course of action in pursuing plaintiff’s application for adjustment of immigration status which led to her removal:


Given plaintiff's allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application …. Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal…. Plaintiff's unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants' malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in plaintiff's position can apply for admission if more than ten years have passed from the date of the alien's last departure from the United States. Delgado v Bretz & Coven, LLP, 2013 NY Slip Op 04720, 1st Dept, 6-20-13






Conversion Action Can Not Be Based Upon Funds Which Came Into Party’s Possession Lawfully (Down Payment)


In a breach of (purchase) contract action, the Second Department explained that a conversion cause of action could not be based upon the down payment in seller’s possession, and an unjust enrichment cause of action could not be based on the same facts as the breach of contract cause of action:


The Supreme Court properly granted that branch of Smith's motion which was for summary judgment dismissing the cause of action alleging conversion, since he was rightfully in possession of the down payment …. "Where one is rightfully in possession of property, one's continued custody of the property and refusal to deliver it on demand of the owner until the owner proves his [or her] right to it does not constitute a conversion"…. The Supreme Court also properly granted that branch of the motion which was for summary judgment dismissing the cause of action alleging unjust enrichment as duplicative of the breach of contract cause of action….  Green Complex, Inc v Smith, 2013 NY Slip Op 04575, 2nd Dept, 6-19-13

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