ATTORNEYS (DEFAMATION, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/DEFAMATION (STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/PRIVILEGE (ATTORNEYS, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)

ATTORNEYS, DEFAMATION, PRIVILEGE.

STATEMENTS MADE BY ATTORNEY IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED, DEFAMATION ACTION PROPERLY DISMISSED.

The Second Department determined the defendant-attorney's motion to dismiss the defamation complaint was properly dismissed for failure to state a cause of action. The allegedly defamatory statements were made in an affidavit submitted to the court and concerned the will at the center of the proceedings. The statements, therefore, were absolutely privileged:

An otherwise defamatory statement may be "privileged" and thus not actionable ... . Insofar as is relevant herein, an absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, provided that the statements may be considered in some way "pertinent" to the issue in the proceeding ... . "The test of pertinency [to the litigation] is extremely liberal so as to embrace [ ] anything that may possibly or plausibly be relevant or pertinent'" ... . This privilege applies to all statements made in or out of court and regardless of the motive for which they were made ... .

Here, the complaint alleges that the defendant, who was counsel for the executor in a probate proceeding, made allegedly defamatory statements in an affirmation in support of a motion in that proceeding to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, the contested last Will and Testament of the decedent. Therefore, the subject statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action ... . Brady v Gaudelli, 2016 NY Slip Op 01793, 2nd Dept 3-16-16

CIVIL PROCEDURE (WAIVED DEFENSE CAN BE INTERPOSED IN AN ANSWER AMENDED BY LEAVE OF COURT)/AMENDED ANSWER (WAIVED DEFENSE CAN BE INTERPOSED IN AN ANSWER AMENDED BY LEAVE OF COURT)/AFFIRMATIVE DEFENSES (WAIVED DEFENSE CAN BE INTERPOSED IN AN ANSWER AMENDED BY LEAVE OF COURT)

CIVIL PROCEDURE.

WAIVED DEFENSE CAN BE INTERPOSED IN AN ANSWER AMENDED BY LEAVE OF COURT.

The Second Department determined defendant doctor in this medical malpractice action should have been allowed to amend his answer to add the defense of discharge in bankruptcy. The court noted that even where a defense is waived pursuant to CPLR 3211(e) it can be interposed in an answer amended by leave of court pursuant to 3025(b):

Even when a defense is waived under CPLR 3211(e), "it can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit" ... . Under the circumstances of this case, we find that [defendant's] affirmative defense of discharge in bankruptcy is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend his answer to add this affirmative defense ... . Dixon v Chang, 2016 NY Slip Op 01797, 2nd Dept 3-16-16

CIVIL PROCEDURE (AMENDMENT OF AD DAMNUM CLAUSE OF THE COMPLAINT SHOULD HAVE BEEN ALLOWED)/AD DAMNUM CLAUSE (AMENDMENT OF AD DAMNUM CLAUSE OF THE COMPLAINT SHOULD HAVE BEEN ALLOWED)

CIVIL PROCEDURE.

PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE AD DAMNUM CLAUSE OF THE COMPLAINT.

The Fourth Department determined plaintiff in a breach of contract action should have been allowed to amend its ad damnum clause:

... Supreme Court abused its discretion in denying its motion to amend the ad damnum clause from $77,585.50 to $111,331.13, and we therefore modify the order by granting the motion. It is axiomatic that " [l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit' " ... . * * *

... "[I]n the absence of prejudice . . . , a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted" ... . Putrelo Constr. Co. v Town of Marcy, 2016 NY Slip Op 01949, 4th Dept 3-18-16

CIVIL PROCEDURE (SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD)/FRAUD (SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD)/FIDUCIARY DUTY, BREACH OF (SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD)

CIVIL PROCEDURE, BREACH OF FIDUCIARY DUTY, FRAUD.

SIX-YEAR STATUTE OF LIMITATIONS APPLIES TO BREACH OF FIDUCIARY DUTY CLAIMS WHICH SOUND IN FRAUD.

The First Department, in a case remitted by the Court of Appeals, determined the six-year statute of limitations applied to "breach of fiduciary duty" causes of action because fraud allegations were at the heart of the claims. Where, as here, a "breach of fiduciary duty" cause of action seeks monetary damages and not equitable relief, the three-year statute of limitations usually applies. However, where, as here, allegations of fraud are central to the fiduciary duty cause of action, the six-year statute of limitations applies:

... [A] cause of action for breach of fiduciary duty based on allegations of actual fraud is subject to a six-year limitations period" ... . An exception to this rule exists " if the fraud allegation is only incidental to the claim asserted'" ... . Thus, "where an allegation of fraud is not essential to the cause of action pleaded except as an answer to an anticipated defense of Statute of Limitations, courts look for the reality, and the essence of the action and not its mere name" ... .

Here, although the fiduciary duty claims seek monetary relief, the six-year limitations period applies because the claims sound in fraud. Cusimano v Schnurr, 2016 NY Slip Op 01758, 1st Dept 3-15-16

CIVIL PROCEDURE (SUMMARY JUDGMENT, UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)/EVIDENCE (SUMMARY JUDGMENT, UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)/SUMMARY JUDGMENT MOTIONS (UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)

CIVIL PROCEDURE, EVIDENCE.

UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED FOR SUMMARY JUDGMENT MOTION; CREDIBILITY OF AFFIANTS SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT MOTION.

In the course of reversing Supreme Court's grant of summary judgment to defendants in a car-accident case, the court noted that unworn and uncertified medical records were admissible to support plaintiff's serious-injury claim because the documents were submitted by the defendants or because the documents were relied upon by plaintiff's expert, who provided a sworn opinion. In addition, the court noted that the credibility of affiants should not, as a general rule, be considered in deciding a summary judgment motion:

Although ... many of the medical reports and records submitted by plaintiff in opposition to the cross motions were unsworn and uncertified, we may consider those reports and records that were "submitted by defendants . . . or were referenced in the reports of physicians who examined plaintiff on their behalf, and [defendants] submitted the reports of [those physicians]" ... . To the extent that plaintiff submitted unsworn and uncertified medical reports and records that were not submitted by defendants or relied upon by their expert, we may nevertheless rely on the medical opinions of plaintiff's experts because "the various medical opinions relying on those . . . reports [and records] are sworn and thus competent evidence" ... . ... [T]he court erred in discounting entirely the opinion of plaintiff's treating physician due to perceived errors in his report. "The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned" ... . Cook v Peterson, 2016 NY Slip Op 01950, 4th Dept 3-18-16

CONTRACT LAW (COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL STATED CAUSES OF ACTION FOR BREACH OF CONTRACT AND BREACH OF WARRANTY)/UCC (COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL STATED CAUSES OF ACTION FOR BREACH OF CONTRACT AND BREACH OF WARRANTY)/FUEL OIL  (COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL STATED CAUSES OF ACTION FOR BREACH OF CONTRACT AND BREACH OF WARRANTY)

CONTRACT LAW, UCC.

COMPLAINTS ALLEGING THE DELIVERY OF FUEL OIL MIXED WITH WASTE OIL SHOULD NOT HAVE BEEN DISMISSED, THE COMPLAINTS STATED BREACH OF CONTRACT AND BREACH OF WARRANTY CAUSES OF ACTION.

The First Department, in a full-fledged opinion by Justice Saxe, determined two class action complaints alleging defendants supplied heating oil of lesser quality than that called for by the contracts should not have been dismissed. The complaints alleged waste oil had been mixed with the No. 4 and No. 6 fuel oil which was ordered. Certain detrimental effects of burning the mixed fuel were alleged. The First Department held that the "no injury" products liability cases relied upon by the motion court did not apply. Rather the case presented breach of contract/warranty issues:

Plaintiffs essentially allege that, consistent with the ASTM specifications, as well as common commercial usage, and pursuant to the UCC, customers purchasing goods described as No. 4 and No. 6 fuel oil are entitled to presume that they are receiving 100% fuel oil of the specified grade, and not a product consisting of a blend of No. 4 or No. 6 fuel oil with some other types of oil that do not meet the criteria of those ASTM specifications. * * *

Under UCC 2-714(2), the measure of damages for breach of warranty is the difference between the value of the goods delivered and the value of the goods warranted ... . Since we must infer from the complaint that plaintiffs received nonconforming oil deliveries of lesser value than those they contracted and paid for, causes of action for breach of contract and breach of warranty — including plaintiffs' damages — are stated in each action. BMW Group, LLC v Castle Oil Corp., 2016 NY Slip Op 01790, 1st Dept 3-15-16

CRIMINAL LAW (PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED)/PRO SE (CRIMINAL LAW, PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED)

CRIMINAL LAW.

UNDER THE FACTS, PRE-TRIAL REQUEST TO PROCEED PRO SE PROPERLY DENIED.

The First Department determined defendant's pre-trial request to represent himself was properly denied because the request raised a significant potential for obstruction and diversion. The request was made after the People rested in a suppression hearing:

... [T]he court properly denied defendant's request to represent himself. Although a request to proceed pro se at trial is generally deemed timely if asserted before trial (see People v McIntyre, 36 NY2d 10, 17 [1974]), defendant here waited until after the People had rested in the suppression hearing before requesting to proceed pro se within that hearing, raising a significant "potential for obstruction and diversion" (id.). Accordingly, the court properly denied defendant's request in the absence of "compelling circumstances" (id.). We note that, over the course of the proceedings, defendant was represented by a total of seven retained or assigned attorneys, and repeatedly changed his mind about whether to represent himself. People v Franklin, 2016 NY Slip Op 01781, 1st Dept 3-15-16

CRIMINAL LAW (EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED)/EVIDENCE (CRIMINAL LAW, MOLINEUX, EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED)

CRIMINAL LAW, EVIDENCE.

EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS HOWEVER.

The Third Department determined evidence of uncharged sexual contact with young girls should not have been admitted in evidence in this rape/sexual-abuse/endangering-the-welfare-of-a-child trial. The error was deemed harmless, however. The limited probative value of the proof was outweighed by its prejudicial effect:

Here, the People moved before trial for permission to offer, among other things, the testimony of four adult female witnesses that defendant had sexual contact with them during the 1970s when he was employed as their music teacher and they were between 12 and 14 years old. * * * The court found that the testimony was not relevant to the charges of rape in the second degree or sexual abuse in the second degree, as defendant's intent to commit these crimes could be inferred from commission of the acts themselves, but that it was relevant to the mens rea element of the charge of endangering the welfare of a child. * * *

... [T]he probative value of the testimony for the limited purpose of showing defendant's mental state in doing kindnesses for the victim was highly limited. The alleged prior bad acts were extremely remote in time, taking place decades previously. Further, there were significant factual differences between the actions that defendant allegedly took to gain the trust of his earlier alleged victims and those he used with the victim. By contrast, the prejudicial impact of the testimony — consisting of descriptions of multiple reprehensible acts allegedly committed by defendant against vulnerable children — was significant. People v Scaringe, 2016 NY Slip Op 01871, 3rd Dept 3-16-16

CRIMINAL LAW (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/EVIDENCE (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/GRAND LARCENY (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)

CRIMINAL LAW, EVIDENCE.

GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE OF STOLEN PROPERTY INSUFFICIENT.

The Fourth Department, in the interest of justice, reduced defendant's grand larceny to petit larceny because of insufficient proof of the value of the stolen property:

The value of stolen property is "the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime" (Penal Law § 155.20 [1]). It is well settled that "a victim must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value" ... . Furthermore, "[c]onclusory statements and rough estimates of value are not sufficient" to establish the value of the property ... . "Although a victim is competent to supply evidence of original cost' . . . , evidence of the original purchase price, without more, will not satisfy the People's burden' " ... . 

Here, the victim testified that several specific items were taken, but the only evidence of the value of those items was the victim's testimony regarding the purchase price of some of them, and her hearsay testimony regarding a purported expert's appraisal of some of the property, which was based solely on her description of certain jewelry to the purported expert. Based on the evidence of value in the record, we cannot conclude "that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold" of $3,000 ... . People v Slack, 2016 NY Slip Op 01930, 4th Dept 3-18-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (ASSAULT WITH A CHAMPAGNE BOTTLE CONSTITUTED USE OF DEADLY FORCE, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE)/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

CRIMINAL LAW, EVIDENCE.

JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's assault and manslaughter convictions and ordered a new trial, finding the jury should have been charged on the "deadly force" justification defense. There was evidence defendant acted to defend her brother who was struck with a champagne bottle. The assault with the bottle could constitute deadly force, justifying the use of deadly force in defense:

... [T]he court erred in denying her request to charge the jury on justification using deadly physical force in defense of a third party for the assault count. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that the first victim was using deadly physical force by striking defendant's brother in the head with a champagne bottle when defendant assaulted her ... . We further agree with defendant that the error in failing to give the justification charge on the assault count requires reversal of the manslaughter count as well. Although the court instructed the jury on justification for that count, there was a "significant factual relationship" between the two counts ... , particularly on the issue whether defendant was the initial aggressor (see Penal Law § 35.15 [1] [b]). We therefore reverse the judgment and grant a new trial on both ... . People v James, 2016 NY Slip Op 01946, 4th Dept 3-18-16

CRIMINAL LAW (SORA RISK LEVEL, DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL ACADEMIC)/APPEALS (SORA RISK LEVEL, DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL ACADEMIC)/SEX OFFENDER REGISTRATION ACT (SORA) (USE OF EXTREME VIOLENCE WARRANTED UPWARD DEPARTURE)

CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), APPEALS.

DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL OF SORA RISK ASSESSMENT ACADEMIC; UPWARD DEPARTURE BASED UPON THE EXTREME VIOLENCE OF THE CRIME PROPER.

The Second Department, in a full-fledged opinion by Justice Leventhal, determined the fact defendant had been deported did not render his appeal of a Sex Offender Registration Act (SORA) level 2 risk assessment academic ( a matter of first impression in the department). The court further determine the SORA court properly increased defendant's risk level based on the extreme violence of the crime, even though the guidelines took violence into account:

... [T]he People have failed to demonstrate that the defendant's involuntary absence from New York renders review of the order designating him a level two offender academic. As a result of his level two designation, the defendant's name, photograph, the details of his crime, and other information can be accessed online at the Division website, notwithstanding the fact that he has been deported ... . The outcome of an appeal such as this, which concerns a defendant's risk level designation, will have certain practical consequences with respect to SORA registration requirements, such as the duration of the posting of this information, which is already on the website (see Correction Law § 168-h). * * *

While the SORA Guidelines do take into account the use of violence under risk factor 1, the People's proof demonstrated, by clear and convincing evidence, that the SORA Guidelines did not adequately take into account the true nature of the defendant's actions, and that the defendant's conduct tended to show a higher likelihood of reoffense or danger to the community. The case summary indicates that the defendant repeatedly punched the victim in the face, placed a knife to her throat, threatened to kill her, put his mouth on her breasts and vagina, attempted to place his penis in her mouth, and put his penis in her vagina against her will. Following the incident, which lasted several hours, the police recovered various items within the subject residence that were covered in blood, and the victim's face was both bruised and bloody.

Thus, the defendant was properly designated a level two sex offender. People v Shim, 2016 NY Slip Op 01818, 2nd Dept 3-16-16

EDUCATION-SHCOOL LAW (TACIT MISREPRESENTATIONS BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS)/CONTRACT LAW (EDUCATION-SCHOOL LAW, TACIT MISREPRESENTATIONS BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS)

EDUCATION-SCHOOL LAW, CONTRACT LAW.

TACIT MISREPRESENTATION BY STUDENT DURING ADMISSIONS PROCESS ENTITLED LAW SCHOOL TO REFUSE TO AWARD LLM DEGREE AFTER STUDENT HAD COMPLETED COURSE REQUIREMENTS.

The First Department, in a full-fledged opinion by Justice Saxe, determined respondent law school had the authority to refuse an LLM degree to a student who had completed the course requirements because of the student's (tacit) misrepresentation at the time of admission to the program. The LLM program was open to students with a law degree from a foreign school. However, the student's law degree was from an online law school---information the student should have provided when he realized the school representative was under the impression his degree was from a foreign school. The student's law school transcript was not provided until after he had begun courses in the LLM program:

With regard to the contract cause of action, petitioner relies on case law holding that "[t]here exists an implied contract between the institution and its students such that if the student complies with the terms prescribed by the institution, he will obtain the degree which he sought" ... . However, even assuming that such an implied contract might have been formed here, a school has the authority to rescind a student's admission or to dismiss a student from the school, even after course work has begun or been completed, where there were material misrepresentations or omissions in the student's application ... . ... Although petitioner here did not affirmatively or explicitly misrepresent facts on his application, he omitted the critical fact that the school from which he had received his J.D. degree was not a foreign law school, which fact disqualified him from eligibility for entry into the LL.M. program. By submitting the application, petitioner was implicitly stating that he satisfied the program's prerequisites for attendance, in particular, the requirement that he had attended a foreign law school. Indeed, he did more than omit that information; he allowed respondents to proceed with his admission knowing that they harbored a misconception regarding the nature of the institution that had awarded him a J.D. degree. Petitioner knew or should have known from the outset that (1) to be eligible for the program to which he applied, he had to have graduated from a foreign law school, and (2) on the date he was admitted, Touro's administrators had incorrectly concluded that Novus was a law school located in the Philippines. Since petitioner's admission was based upon an omission of a material fact of which petitioner was aware, petitioner's conditional admission was falsely obtained. Pursuant to the school's code of conduct, the terms of the application and the law the school had no contractual obligation to award a degree under these circumstances. Matter of Salvador v Touro Coll., 2016 NY Slip Op 01924, 1st Dept 3-17-16

ENVIRONMENTAL LAW (EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN SEQRA REVIEW)/ENVIRONMENTAL LAW (PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND NEGATIVE DECLARATION AFTER PERMITS ISSUED)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN SEQRA REVIEW)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND NEGATIVE DECLARATION AFTER PERMITS ISSUED)

ENVIRONMENTAL LAW, LAND USE.

EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN A SEQRA REVIEW; PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND A NEGATIVE DECLARATION AFTER PERMITS WERE ISSUED.

The Fourth Department determined two village officials did not have a conflict of interest which would preclude their participation in a State Environmental Quality Review Act (SEQRA) review of a development project. The two had expressed opposition to the project before and after their elections, but expression of opinion does not create a conflict of interest. The Fourth Department upheld the annulment of resolutions which stated the proposed project would adversely affect the environment. The planning board had previously found no adverse impact (a negative declaration) and had issued permits. The board did not have the authority to rescind the negative declaration at that point:

... [T]he Board lacked authority to rescind its negative declaration under the circumstances of this case. Here, the Board was authorized to rescind its negative declaration "prior to its decision to undertake, fund, or approve an action," and the Board made its decision to approve the action, i.e., the Project, when it issued the requisite special permits ... . Matter of Pittsford Canalside Props., LLC v Village of Pittsford, 2016 NY Slip Op 01929, 4th Dept 3-18-16

FAMILY LAW (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/PERSONAL PROPERTY (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/DEBTOR-CREDITOR (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/CIVIL PROCEDURE (NON-DEBTOR SPOUSE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN ACTION TO ENFORCE JUDGMENT AGAINST DEBTOR-HUSBAND)/INTERVENE, MOTION TO (NON-DEBTOR SPOUSE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN ACTION TO ENFORCE JUDGMENT AGAINST DEBTOR-HUSBAND)

FAMILY LAW, DEBTOR-CREDITOR, CIVIL PROCEDURE.

WIFE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN AN ACTION SEEKING THE TURNOVER OF PERSONAL PROPERTY TO ENFORCE A JUDGMENT AGAINST HUSBAND; HER SEPARATE PROPERTY, AS OPPOSED TO MARITAL PROPERTY, COULD NOT BE REACHED BY A JUDGMENT CREDITOR.

The First Department determined the wife in a divorce proceeding, Wendy, should have been allowed to intervene in an action against her husband, Hugh, by plaintiff, Pensmore, seeking the turnover and sale of personal property to enforce a money judgment. Wendy submitted proof supporting her claim that the personal property in her possession was her separate property, not marital property, and therefore could not be reached by the creditor:

As a preliminary matter, we agree with Wendy that because Hugh was not in physical possession of the property which is the subject of the turnover order, the enforcement proceeding should have been brought as a special proceeding pursuant to CPLR 5225(b). Wendy was required to have been named as a party and separately served with the petition, because she is the one in actual possession of the disputed property (CPLR 5225[b] McKinney's Practice Commentary, 5225.5). Although Pensmore did not properly name Wendy, the error could have been cured by permitting Wendy to intervene, so long as the burden of proof remained on the judgment creditor (Pensmore) to establish that the judgment debtor (Hugh) has an interest in the property that is superior to the person in actual possession (Wendy) ... .

The trial court was required to hold a hearing to determine whether the personal property in Wendy's possession is her sole separate property or marital property. * * *

While ... an inchoate right to equitably share in marital property cannot be protected against third party creditors of a debtor spouse ... , the same rule does not hold true for separate property of the non-debtor spouse. Domestic Relations Law § 236[B] provides that "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held" is marital property (Domestic Relations Law § 236 [B][1][c]...). There is an exception, however, for "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;" such property is the separate property of that spouse (DRL § 236 [B][1][d]...). Separate property, is not "marital property" and it is not equitably distributed in a divorce action ... . Although neither spouse has a vested interest in any property that is otherwise marital until it is distributed in a divorce action, separate property, unless transmuted or commingled, retains its character as the property of the spouse who owns it both during and after the marriage ... . Pensmore Invs., LLC v Gruppo, Levey & Co., 2016 NY Slip Op 01789, 1st Dept 3-15-16

FAMILY LAW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/JUVENILE DELINQUENCY (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/EVIDENCE (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/APPEALS (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE REVIEW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE, CRITERIA EXPLAINED)

FAMILY LAW, JUVENILE DELINQUENCY, EVIDENCE, APPEALS.

JUVENILE DELINQUENCY ADJUDICATION AGAINST THE WEIGHT OF THE EVIDENCE; ANALYTICAL CRITERIA EXPLAINED.

The Second Department, over a dissent, determined the juvenile delinquency finding was against the weight of the evidence. The juvenile was accused of throwing a kitten under the wheels of a moving vehicle. The single-witness case relied upon weak identification evidence. The court explained the "weight of the evidence" analytical criteria in this context:

We must "weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" ... . In weighing the conflicting testimony in a single-witness identification case, as here, we must independently consider, among other things, the truthfulness and reliability of the identification testimony ... . * * *

... [T]he reliability of the witness's identification of the appellant was called into doubt by several factors. An examination of her testimony reveals that the witness had only a limited opportunity and ability to observe the perpetrator because the incident occurred over a relatively short period of time, and there was a distance of a minimum of 10 feet between the witness and the perpetrator during their interaction. The witness was also admittedly excited and upset during the incident. In addition, the witness's description of the perpetrator lacked specificity, and did not include body shape, height, weight, facial features, skin tone, accent, or any distinctive characteristics. We further note that the incident occurred in the late afternoon near the time that students were being released from several neighborhood schools, that the perpetrator was dressed in a school uniform similar in type to the uniforms worn by students at those schools, and that the witness's description of the school uniform worn by the perpetrator did not match the appellant's school uniform. Under these circumstances, the witness's identification of the appellant was not convincing when balanced against the substantial evidence submitted by the appellant in her own defense. Matter of Shannel P., 2016 NY Slip Op 01853, 2nd Dept 3-16-16

FAMILY LAW (INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/APPEALS (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)

FAMILY LAW, RIGHT TO COUNSEL, APPEALS.

INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL; PRESERVATION OF THIS ISSUE NOT NECESSARY.

The Fourth Department reversed Family Court's finding respondent had willfully violated a court order because of an insufficient waiver of the right to counsel. The court noted that a prior decision requiring preservation of the right-to-counsel issue should no longer be followed:

Although the Support Magistrate properly advised respondent that he had the right to counsel (see Family Ct Act § 262 [a] [vi]), we agree with respondent that the Support Magistrate failed to make a " searching inquiry' " to ensure that his waiver of the right to counsel was a knowing, voluntary and intelligent choice, and thus that he was denied his right to counsel ... . We therefore reverse the order and remit the matter to Family Court for a new hearing. To the extent that our decision in Matter of Huard v Lugo (81 AD3d 1265... requires preservation of a contention that the Support Magistrate erred in allowing the respondent to proceed pro se at a fact-finding hearing, that decision is no longer to be followed. Matter of Girard v Neville, 2016 NY Slip Op 01947, 4th Dept 3-18-16

FORECLOSURE (SUA SPONTE DISMISSAL OF COMPLAINT FOR LACK OF STANDING REVERSED)/STANDING (FORECLOSURE, SUA SPONTE DISMISSAL OF COMPLAINT FOR LACK OF STANDING REVERSED, DEFENSE WAS WAIVED AND IS NOT A JURISDICTION DEFECT)

FORECLOSURE, CIVIL PROCEDURE.

SUA SPONTE DISMISSAL FOR LACK OF STANDING REVERSED, LACK OF STANDING DEFENSE WAS WAIVED AND IS NOT A JURISDICTIONAL DEFECT.

The Second Department reversed Supreme Court's sua sponte dismissal of a foreclosure complaint for lack of standing. Because the defendants did not answer the complaint or make a pre-answer motion to dismiss, the defense of lack of standing was waived. The matter was sent back to be heard by a different judge:

The Supreme Court erred in, sua sponte, directing the dismissal of the plaintiff's complaint and discharge of the notice of pendency against the subject property for lack of standing. "A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ... . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint and discharge of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing ... . Furthermore, a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court ... . Consumer Solutions, LLC v Charles, 2016 NY Slip Op 01794, 2nd Dept 3-16-16

FORECLOSURE (PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARANTY AFTER RELEASING MORTGAGE)/NOTE (FORECLOSURE, PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARATNY AFTER RELEASING MORTGAGE)/MORTGAGES (FORECLOSURE, PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARATNY AFTER RELEASING MORTGAGE)/DEBTOR-CREDITOR  (FORECLOSURE, PLAINTIFF COULD PROCEED AGAINST NOTE AND GUARATNY AFTER RELEASING MORTGAGE)/CIVIL PROCEDURE (AMENDING COMPLAINT, AFTER RELEASING MORTGAGE, PLAINTIFF COULD PROCEED AGAINST THE NOTE AND GURANTEE BY AMENDING THE ORIGINAL FORECLOSURE COMPLAINT)

FORECLOSURE, CIVIL PROCEDURE.

ONCE PLAINTIFF RELEASED THE MORTGAGE UPON PAYMENT OF LESS THAN THE VALUE OF THE NOTE, PLAINTIFF COULD PROCEED AGAINST THE NOTE AND GUARANTY BY AMENDING THE FORECLOSURE COMPLAINT.

The Second Department, reversing Supreme Court, determined, once plaintiff agreed to release a mortgage in return for sale proceeds which were less than the value of the note, plaintiff could then commence a proceeding on the note and the guaranty. The court further held that the action on the note and guaranty could be accomplished by amending the original foreclosure complaint:

"RPAPL 1301(3) . . . prohibits a party from commencing an action at law to recover any part of the mortgage debt while the foreclosure proceeding is pending or has not reached final judgment, without leave of the court in which the foreclosure action was brought'" ... . Conversely, "where a foreclosure action is no longer pending and did not result in a judgment in the plaintiff's favor, the plaintiff is not precluded from commencing a separate action' without leave of the court" ... .

Here, since, pursuant to the parties' stipulation, the plaintiff agreed to accept the net proceeds of the sale in exchange for releasing the property from the mortgage and there was no judgment in the plaintiff's favor, the plaintiff was not precluded from seeking to recover on the note and guaranty by RPAPL 1301(3), "a statute which must be strictly construed" ... .

Furthermore, there is no reason the plaintiff could not seek such relief by seeking leave to amend its complaint, rather than by commencing a new action ... . TD Bank, N.A. v 250 Jackson Ave., LLC, 2016 NY Slip Op 01828, 2nd Dept 3-16-16