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May Page III

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


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For Purposes of CPLR 205 (a) (Allowing the Commencement of a New Action within Six Months of the Termination of a Prior Action) a Prior Action Terminates When a Nondiscretionary Appeal Is "Exhausted," Even If the Appeal Is Dismissed As Abandoned


The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that the six-month period for commencing a new action after the termination of a prior action afforded by CPLR 205 (a) runs from the termination of an appeal, even if the appeal is dismissed as abandoned. Here the plaintiff started an action in federal court which was dismissed by District Court.  Plaintiff then appealed as of right to the Second Circuit.  The appeal was dismissed for failure to file the brief and appendix.  Plaintiff, before the federal appeal was dismissed, started an action in state court. The state court action was started more than six months after the District Court had dismissed the federal action and defendants moved to dismiss the state action under CPLR 205 (a).  The Court of Appeals held that the CPLR 205 (a) six-month period did not start running until the federal appeal was dismissed.  Therefore the state action was timely commenced:


In its current form, CPLR 205 (a) provides:


"If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period." * * *


... [T]his Court has not addressed the issue of when a prior action terminates for purposes of CPLR 205 (a) where, as here, an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff's failure to perfect. We resolve that question now by ... holding that, where an appeal is taken as of right, the prior action terminates for purposes of CPLR 205 (a) when the nondiscretionary appeal is truly "exhausted," either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned. Malay v City of Syracuse, 2015 NY Slip Op 04164, CtApp 5-14-15






Waiver of Appeal Encompasses Sentencing Court's Denial of Youthful Offender Status


The Court of Appeals, over a two-judge dissent, determined a defendant who has waived his right to appeal may not (on appeal) raise the sentencing court's denial of youthful offender status.  The Court of Appeals described the limited circumstances under which fundamental issues may be raised on appeal despite a waiver of appeal. Among them is the sentencing court's failure to consider youthful offender status for an eligible defendant. However, if the sentencing court considered the issue, it is encompassed by the waiver:


"[G]enerally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to 'the very heart of the process'" ... . This Court has recognized that the right to a speedy trial, challenges to the legality of a court-imposed sentence, questions about a defendant's competency to stand trial, and whether the waiver was obtained in a constitutionally acceptable manner cannot be foreclosed from appellate review ... . * * *


It is well settled that once considered, a youthful offender adjudication is a matter left to the sound discretion of the sentencing court and therefore any review is limited (see CPL 720.20 [1] [a]). ..."[W]hen a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence. By pleading guilty and waiving the right to appeal, a defendant has forgone review of the terms of the plea, including harshness or excessiveness of the sentence" ... . To the extent defendant appeals the harshness of his sentence or the sentencing court's exercise of discretion in denying youthful offender status, his appeal waiver forecloses the claim.


We therefore conclude that a valid waiver of the right to appeal, while not enforceable in the face of a failure to consider youthful offender treatment, forecloses appellate review of a sentencing court's discretionary decision to deny youthful offender status once a court has considered such treatment. People v Pacherille, 2015 NY Slip Op 04027, CtApp 5-12-15






Reduced Sentences Pursuant to the Drug Law Reform Act Apply to Those on Parole As Well As Those Who Are Incarcerated


The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a two-judge dissent, determined that the ability to apply for a reduced sentence for drug offenses pursuant to the Drug Law Reform Act applied to those on parole, as well as those who are incarcerated: "The issue presented by this appeal is whether the 2011 amendments to CPL 440.46 expanded the class of defendants eligible for resentencing under the Drug Law Reform Act to include those who are on parole at the time resentencing is sought. We left this question open in People v Paulin (17 NY3d 238, 243 [2011]) and People v Santiago (17 NY3d 246, 247 [2011]), and now hold that the amendments did expand eligibility to parolees ..." . People v Brown, 2015 NY Slip Op 04163, CtApp 5-14-15






Intent to Rob Sufficiently Proven by Circumstantial Evidence


The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was sufficient evidence to support the attempted robbery conviction.  Defendant, when the business was closed, was dressed in dark clothes, wearing a mask, and carrying a handgun (BB gun) while pounding on the door of the business asking to enter.  The defendant never was allowed inside and ran when the police arrived.  The defendant argued there was no evidence he intended to commit robbery, as opposed to some other crime.  The Court of Appeals found the circumstantial evidence of an intent to commit robbery sufficient:


...[H]ere there was evidence that defendant, who was unknown to any of the employees present that morning, and had no apparent business at Wendy's, nevertheless showed up masked and armed, carrying a backpack, seeking entry at 6:30 am through a locked rear door not used by the public, with an escape vehicle conveniently parked nearby. This fit the pattern common to an early morning robbery of a commercial establishment and was sufficient to support the inference that defendant intended to steal. People v Lamont, 2015 NY Slip Op 04165, CtApp 5-14-15







Denial of Petitioner's Application for Employment as a School-Bus Driver, Based Upon His Criminal Record, Was Not Arbitrary and Capricious Despite Petitioner's Good Employment Record and His Obtaining a Certificate of Relief from Civil Disabilities


The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined petitioner was properly precluded by the Department of Education (DOE) from employment as a school-bus driver, based upon his criminal record.  The offenses were committed when petitioner was in his 40's and petitioner had had no further contact with the criminal justice system for 15 years.  Petitioner had obtained a certificate of relief from civil disabilities and had a good employment record, which included transporting children.  The Court of Appeals held that the DOE's action was not arbitrary and capricious because the DOE considered all of the statutory factors in Corrections Law 752.  The Court of Appeals noted that obtaining a certificate of relief from civil disabilities establishes a presumption of rehabilitation, but the certificate does not establish a prima facie right to a license or employment:


The Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the § 752 exceptions applies:


"(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public." (Correction Law § 753 [1].) 


[The Court of Appeals has held] that "[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive" ... . Matter of Dempsey v New York City Dept. of Educ., 2015 NY Slip Op 04028, CtApp 5-12-15







Triggering Event for the Statute of Limitations Re: a Challenge of the Termination of Section 8 Rent Subsidies Is the Sending of the So-Called T-3 Letter-Notification, Irrespective of Whether the Two Prior Required Letter-Notifications Were Sent


The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, determined that the so-called T-3 letter to tenants from the New York City Housing Authority (NYCHA), which notifies tenants of the termination of their Section 8 rent subsidies, is the triggering event for the four-month statute of limitations for challenging the termination. The applicable "Williams consent judgment" mandates a three-step procedure for termination of the rent subsidies, essentially three notifications to tenants, of which the T-3 letter is the last. The issue before the court was whether the NYCHA's inability to show the first two notifications were properly sent prevented the statute of limitations from running when the T-3 letter was sent.  The Court of Appeals held that, although the failure to follow the three-step procedure is a defense to the termination of the subsidies, the statute of limitations for any challenge properly runs from the sending of the T-3 letter:


The plain language of the Williams consent judgment draws a distinction between what is required to commence the limitations period for a challenge to a termination of Section 8 benefits, on the one hand, and what is required for NYCHA to establish the merit of such a termination — including NYCHA's full compliance with the notice requirements — on the other hand. Matter of Banos v Rhea, 2015 NY Slip Op 04029, CtApp 5-12-15







In Extraordinary Circumstances, Testimony by Two-Way Video Conference Can Be Used In Mental Hygiene Law Article 10 Proceedings


The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the judge in a Mental Hygiene Law article 10 proceeding has the discretion, in extraordinary circumstances, to allow testimony by electronic appearance (live two-way video conference). Here, however, the respondent objected to the procedure and the State did not demonstrate the requisite extraordinary circumstances.  The error  was deemed harmless however:


...[W]e hold that permitting the two-way, live video testimony ... was within the discretion of the court. As we have previously explained, "[l]ive televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances" ... . ... [Here} [p]ermitting [the witness] to deliver her testimony via video conference over respondent's objection without requiring a proper showing of exceptional circumstances was error. Matter of State of New York v Robert F., 2015 NY Slip Op 04162, Ct App 5-14-15







A Forged Deed Is Void Ab Initio and Any Encumbrance on Real Property Based Upon a Forged Deed Is Null and Void---Action Based Upon a Forged Deed Is Not Therefore Subject to the Six-Year Statute of Limitations for Fraud


The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined that a forged deed is void ab initio and neither a forged deed nor a mortgage interest based upon a forged deed is valid at any time.  Therefore, the six-year statute of limitations for fraud does not apply and the action was not time-barred: "The legal question raised in this appeal is whether plaintiff ... is time-barred under CPLR 213 (8) from seeking to set aside and cancel, as null and void, defendant Bank of America's mortgage interest in real property conveyed on the authority of a forged deed. Under our prior case law it is well-settled that a forged deed is void ab initio, meaning a legal nullity at its inception. As such, any encumbrance upon real property based on a forged deed is null and void. Therefore, the statute of limitations set forth in CPLR 213 (8) does not foreclose plaintiff's claim against defendant. " Faison v Lewis. 2015 NY Slip Op 04026, Ct App 5-12-15






Contract and Related Instrument for Money Only Inextricably Intertwined---Summary Judgment On Instrument Precluded by Related Breach of Contract Action




The Second Department noted that, although a breach of a related contract will generally not defeat summary judgment on an instrument for money only, that is not the case where the contract and instrument are inextricably intertwined:  "The defendant ... previously commenced an action to recover damages against the plaintiff, alleging that the plaintiff breached an operating agreement ... . That action was inextricably intertwined with the instant action, which was commenced by the plaintiff to recover on a promissory note and personal guaranty. Indeed, the actions have already been joined for trial (see CPLR 602[a]...). Moreover, the promissory note refers to the operating agreement for the purpose of defining certain terms set forth in the note, and the promissory note and personal guaranty are referred to in, and appended as exhibits to, the operating agreement ... ." Montecalvo v Cat E., LLC, 2015 NY Slip Op 04103, 2nd Dept 5-13-15






A Conditional Judgment May Be Rendered On the Issue of Contractual Indemnity---The Party Seeking Contractual Indemnity Must Be Free from Negligence


Plaintiff was injured at a construction site when he fell from a ladder. The construction manager commenced a third-party action against the general contractor seeking contractual indemnification in the event the construction manager is liable to the plaintiff,. The Second Department noted that a " 'court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed' ... . The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability ...". Arriola v City of New York, 2015 NY Slip Op 04079, 2nd Dept 5-13-15






Plaintiff Did Not Adequately Allege a Presuit Demand Would Be Futile


The First Department, noting that the presuit demand required by Business Corporation Law 626(c) applies to Limited Liability Companies, determined that plaintiff failed to adequately allege the presuit demand was excused as futile. The court noted that Business Corporation Law 625(c) does not differentiate between majority and minority shareholders and a corporation's refusal to provide information is not on the list of circumstances where a demand is excused:


Pursuant to Business Corporation Law § 626(c), a plaintiff shareholder must "set forth in the complaint - with particularity - an attempt to secure the initiation of such action by the board or the reasons for not making such effort" ... . Demand is excused due to futility when a complaint alleges with particularity that: (1) "a majority of the board of directors is interested in the challenged transaction"; or (2) "the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances"; or (3) "the challenged transaction was so egregious on its face that it could not have been the product of sound business judgment of the directors" ... . The demand requirement of Business Corporation Law § 626(c) also applies to members of New York limited liability companies ... .


The complaint alleges only that since Sowers owns 80% of the LLC, it would be futile for plaintiff to make a demand upon him to consent to the filing of an action on the LLC's behalf. However, this Court has made clear that Business Corporation Law § 626(c) "does not differentiate between minority and majority shareholders for demand purposes" ... . We note that Sowers' alleged concealment of financial information does not warrant a finding that demand was futile, since "[a] corporation's refusal to provide information to its shareholders is not on the [] list of circumstances where demand is excused" ... , Barone v Sowers, 2015 NY Slip Op 04195, 1st Dept, 5-14-15






Court Not Required to Obtain a New Risk Assessment Instrument After People Filed a Petition for an Upward Modification Based Upon a New Offense Committed In Violation of Defendant's Probation


Re: the People's petition for upward modification, the Second Department determined County Court was not required to obtain a new Risk Assessment Instrument (RAI) after the defendant committed a "new" sex crime in violation of his probation.  The petition for upward modification was properly sent to the Board of Examiners of Sex Offenders (Board) and the Board properly responded by letter:


Correction Law § 168-o specifies that, upon the receipt of such a petition, "the court shall forward a copy of the petition to the board and request an updated recommendation pertaining to the sex offender" (Correction Law § 168-o[4]). The County Court followed this procedure and received an "updated recommendation" from the Board, in the form of a letter. The RAI, an "objective assessment instrument" created by the Board to assess an offender's "presumptive risk level" ... was designed to assist the courts in reaching an initial SORA determination. Indeed, if a new RAI was completed upon the filing of the People's petition, it would be almost identical to the initial RAI, in which 10 out of the 15 risk factors addressed the subject sex offense and crimes committed prior to that offense ... . Thus, the County Court was not required to obtain a new RAI from the Board in considering the People's petition for an upward modification pursuant to Correction Law § 168-o(3). People v Williams, 2015 NY Slip Op 04108, 2nd Dept 5-13-15




Conviction In a Military Tribunal of "Assault with Intent to Commit Rape" Was Not a "Sex Offense" Under New York Law---However, the Conviction Could Be Considered Under the "Prior Criminal History" Risk Assessment Category


The Second Department determined that conviction of "assault with intent to commit rape" in a military tribunal should not have been as a "prior sex crime" to determine defendant's risk level.  The offense did not qualify as a "sex offense" under New York law and did not include all the elements of any New York sex offense.  The conviction, however, could be considered as "a prior criminal history" in the risk assessment: 


...[T]he military offense of which the defendant was convicted did not qualify as a "sex offense," as defined in Correction Law § 168-a(2)(d)(ii) ... . Furthermore, contrary to the People's contention, the defendant's military offense does not "include[ ] all of the essential elements" (Correction Law § 168-a[2][d][i]) of attempted rape in the first degree under New York law, and thus does not qualify as a "sex offense" on that basis.


Although the defendant's prior military offense of assault with intent to commit rape [*2]does not qualify as a sex offense, it does evidence a prior criminal history, People v Lancaster, 2015 NY Slip Op 04106, 2nd Dept 5-13-15






Court Could Not Promise a "Violent Felony Override" Allowing Defendant to Participate in Programs While Incarcerated---Only the DOCCS Can Determine Defendant's Eligibility---Conviction by Guilty Plea Reversed


The Second Department determined the sentencing court had no authority to promise the defendant, as part of the plea bargain, a "violent felony override" which would allow the defendant to participate in a variety of programs while incarcerated. Where a defendant is statutorily qualified (as defendant was) it is up to the Department of Corrections and Community Supervision (DOCCS) to determine a defendant's eligibility for the programs.  Therefore, defendant's guilty plea was reversed because it was based in part on misinformation (not knowing and voluntary):


... [A] "violent felony override" is "an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense" (id.; see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). "Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility" ... . The document itself does not qualify an inmate for eligibility for temporary release ... "It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility" (id.; see generally 7 NYCRR 1900.4). The issuance of the document specified in 7 NYCRR 1900.4(c)(1)(iii) is not discretionary, and a defendant is entitled to have the exact statutory provisions under which he or she was convicted specified in the sentence and commitment ... .


As part of the plea agreement, the County Court promised the defendant that it would sign a "violent felony override," which would make the defendant eligible for several programs in prison. Since the document specified in 7 NYCRR 1900.4(c)(1)(iii) does not, by itself, qualify an inmate for eligibility for temporary release, and eligibility for temporary release programs are determined by DOCCS, the court exceeded its authority by promising the defendant something that it had no authority to promise in exchange for the defendant's plea of guilty. Under these circumstances, the defendant's plea of guilty was not knowing, voluntary, and intelligent... . People v Ballato, 2015 NY Slip Op 04140, 2nd Dept 5-13-15






Counts Rendered Duplicitous by Trial Testimony/Prosecution Held to Erroneous Jury Charge to Which No Objection Was Made/Prosecutorial Misconduct Mandated a New Trial


The Second Department determined: (1) many counts of the indictment were rendered duplicitous because the complainant in this sex-offense case testified to more than one offense within the time-periods encompassed by indictment counts; (2) the prosecution must be held to the erroneous jury charge to which no objection was made (stating proof complainant was less than 14 was required when the statute says less than 15); (3) the prosecution did not prove complainant was less than 14---relevant counts dismissed; and (4) prosecutorial misconduct during summation (prosecutor acted as an unsworn witness, invited the jury to speculate, shifted the burden of proof, and made inflammatory remarks) mandated a new trial on the remaining counts:


Each count of an indictment may charge one offense only" (CPL 200.30[1]). A count in an indictment is void as duplicitous when that "single count charges more than one offense" ... . Where, as here, the crime charged " is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous'" ... . " Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented . . . at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict'" ... . * * *


... [S]ince the People did not object to the erroneous jury charge, they were "bound to satisfy the heavier burden" ... of proving, for counts 1 through 40, that the defendant engaged in sexual intercourse with a person less than 14 years old. Since the evidence demonstrated that the complainant was 14 years old during the time periods encompassed by counts 17 through 40 of the indictment, the People failed to satisfy this burden as to those counts. * * *


"[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command" ... . Rather, "[t]here are certain well-defined limits" (id. at 109). Among other things, "[the prosecutor] must stay within the four corners of the evidence' and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused" ... . A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role ... and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct. Here, the prosecutor surpassed the "well-defined limits" ... .


The prosecutor acted as an unsworn witness when, in response to defense counsel's summation comments regarding the lack of corroborative medical evidence and the failure to call certain witnesses, the prosecutor told the jury that the uncalled witnesses had "nothing to offer" and that the medical records the prosecution failed to offer into evidence were "either irrelevant or cumulative" ... . The prosecutor also improperly invited the jury to speculate as to certain matters, despite advance warning by the trial court not to engage in that line of comment ... . Further, the prosecutor shifted the burden of proof by telling the jury, and repeatedly returning to this theme, that it had not "heard" any "compelling reason" for the complainant to lie, and by suggesting that the jury would have to convict the defendant if it did not "buy" the defendant's explanation of certain evidence ... . The prosecutor further improperly suggested that the jury would have to conclude that the complainant was "evil" in order to acquit the defendant ... . The prosecutor repeatedly vouched for the complainant, while denigrating the defense and expressing his personal opinion as to the defendant's lack of credibility ... . Finally, the prosecutor made a number of inflammatory references to the defendant using the complainant as his "personal sex toy" ... . People v Singh, 2015 NY Slip Op 04157, 2nd Dept 5-13-15






Leave to Amend Complaint Should Have Been Granted---Criteria Explained


The Second Department determined Supreme Court should have allowed plaintiff to amend the complaint. Leave to amend should only be denied if the added causes of action are patently insufficient or devoid of merit.  Defendant would suffer no prejudice or surprise:


"In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" ... . Under this standard, a party seeking leave to amend a pleading need not make an evidentiary showing of merit ... , and leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt ... . * * * ...[The] proposed causes of action are neither patently insufficient nor palpably devoid of merit. Moreover, the parties against whom those causes of action are sought to be asserted will not suffer undue prejudice or surprise resulting directly from the plaintiff's delay in seeking to amend the complaint ... . Stein v Doukas, 2015 NY Slip Op 04115, 2nd Dept 5-13-15





Denial of Plaintiff's Motion to Intervene in a Foreclosure Action Did Not Prohibit, Under the Doctrine of Collateral Estoppel, the Plaintiff's Action to Be Declared the Owner of the Subject Property/A Person With an Interest in Real Property Who Is Not Joined in a Foreclosure Action Is Unaffected by the Judgment of Foreclosure


The Second Department, reversing Supreme Court, determined that plaintiff's (Jamison's) action to declare her the owner of property subject to foreclosure should not have been dismissed under the doctrine of collateral estoppel.  Plaintiff's ownership of the property had not been determined in the foreclosure action in which she unsuccessfully sought to intervene.  In addition, a person with an interest in real property who is not joined in a foreclosure action remains unaffected by the judgment of foreclosure:


The doctrine of collateral estoppel bars relitigation of an issue which has been necessarily decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling ... . The party seeking the benefit of the doctrine of collateral estoppel must establish that the identical issue was necessarily decided in the prior action, and is determinative in the present action ... . Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination ... .


Here, the bank failed to establish that the issue of whether Jamison has an interest in the subject property had already been decided, since the order it relied upon expressly provided that no determination had made by the court with respect to the issue of whether or not Jamison was a necessary or indispensable party, and Jamison's motion to intervene as of right in the foreclosure action was denied without explanation. In any event, where a person with an interest in real property is not joined as a party to an action to foreclose a mortgage on that property, that person's rights are left unaffected by the judgment of foreclosure and sale, and the foreclosure sale may be considered void as to the omitted person ... . Accordingly, Jamison's interest, if any, in the subject property was neither litigated nor determined in the foreclosure action, and the order denying her motion to intervene as of right in the foreclosure action was not an adjudication of her rights on the merits. Jamison v Aquai, 2015 NY Slip Op 04097, 2nd Dept 5-13-15






Unopposed Motions to Enter a Default Judgment Properly Denied---Insufficient Proof of Facts Constituting the Claim


In finding the denial of plaintiff's unopposed motions to enter a default judgment was proper, the Second Department explained the documentary requirements: "A party's right to recover upon a defendant's failure to appear or answer is governed by CPLR 3215... . Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to appear or answer... . ... The plaintiff failed to submit an affidavit of the facts constituting the claim (see CPLR 3215[f]). While a verified complaint may be used as the affidavit of the facts constituting the claim (see CPLR 3215[f]), it must contain evidentiary facts from one with personal knowledge ... . [A] pleading verified by an attorney pursuant to CPLR 3020(d)(3) is insufficient to establish its merits..." [internal quotations omitted]. DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 2015 NY Slip Op 04087, 2nd Dept 5-13-15






Inadequate Excuse for Delay In Answering Complaint---Motion to Vacate Default Judgment Should Have Been Denied


The Second Department determined Supreme Court should not have granted the bank's (BAC's) motion to vacate a default judgment in a foreclosure action.  The bank's excuse (clerical error) was conclusory and belied by a pattern of neglect:


"To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense" ... . "Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" ... .


Here, BAC's proffered excuse, that its default in appearing and answering the complaint was due to a clerical error, was unsubstantiated, conclusory, and inadequately explained, and, therefore, did not constitute a reasonable excuse for the default ... . Moreover, the record demonstrates that the alleged mistake was not an isolated error, but part of a pattern of "repeated neglect" ... . In that regard, BAC failed to present a reasonable excuse for its further delay, after being apprised of its default, in cross-moving to vacate its default. Wells Fargo Bank, N.A. v Krauss, 2015 NY Slip Op 04123, 2nd Dept 5-13-15






Court Should Not Have Dismissed for "Neglect to Proceed"---Criteria Explained


Noting that CPLR 3216 is extremely forgiving and never requires dismissal based on "neglect to proceed," the Second Department determined Supreme Court, under the facts, should not have dismissed the action.  A dual showing of a justifiable excuse for the delay and a meritorious cause of action is not strictly necessary to avoid dismissal:


While generally, the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action (see CPLR 3216[e]...) , such a dual showing is not strictly necessary to avoid dismissal of the action ... .


Under the circumstances of this case, including the minimal 4-day delay in filing the note of issue, the fact that the defendants demanded additional discovery subsequent to the court's certification order containing the 90-day demand, the absence of any claim of prejudice, and the lack of evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action, the Supreme Court improvidently exercised its discretion in declining to excuse the plaintiffs' failure to meet the deadline for filing the note of issue ... . Rossi v Scheinbach, 2015 NY Slip Op 04110, 2nd Dept 5-13-15






Admissions in Pleadings, Including the Failure to Deny an Allegation, Are Always In Evidence for All Purposes in a Trial


In a trial stemming from an automobile accident, during deliberations the jury asked if there was any evidence a defendant, Kahn, was the driver of one of the vehicles.  The judge responded "no."  Ultimately the jury found in favor of the defendant.  The Second Department determined the judge's telling the jury there was no evidence the defendant was the driver was reversible error. The defendant's answer to the complaint included admissions re: operation.  The court noted that the failure to deny an allegation in a complaint is an admission. Pleadings "are always in evidence for all purposes of the trial of an action:"


The Supreme Court committed reversible error when it advised the jury that there was no evidence in this case that would answer its question of whether Khan was the driver of the taxicab in which the plaintiff was a passenger. The failure to deny an allegation in a complaint constitutes an admission to the truth of that allegation (see CPLR 3018[a]...). "Facts admitted in a party's pleadings constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made" ... . Moreover, "admissions . . . in pleadings are always in evidence for all the purposes of the trial of [an] action" ... . In response to the jury's inquiry about whether Khan was the driver, the court should have informed the jury of Khan's and Ali's admissions in their answer concerning their operation and ownership of a certain vehicle which was involved in an accident ... on the same date as the plaintiff's accident and at the same location, so that the jury could draw its own inferences on this question. DeSouza v Khan, 2015 NY Slip Op 04085, 2nd Dept 5-13-15







"Lack of Capacity to Sue" Defense Waived If Not Raised in Pleadings/Court Should Not Have Decided Summary Judgment Motion by Searching the Record and Ruling On Issues Not Raised by Anyone


In the context of a suit alleging conversion stemming from the handling of an estate, the Second Department determined the "lack of capacity to sue" defense had been waived because it was not raised by defendant in his pleadings.  The court further determined Surrogate's Court exceeded its powers when it went beyond the issues placed before it plaintiff's summary judgment motion, searched the record and decided the motion in defendant's favor on grounds not raised by anyone:


[The defendant] waived the defense of lack of capacity by failing to raise such defense in a pre-answer motion to dismiss or in his answer to the amended complaint in the action (see CPLR 3211[e]...).


... [O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court ... . "A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense" ... .


The Surrogate's Court improperly searched the record and awarded summary judgment to [defendant] dismissing objections 1(i) and 9. [Plaintiff] moved for summary judgment on these objections solely on the grounds that he established that [defendant] converted funds from the father's estate and failed to account for funds that the estate owed to [plaintiff]. [Defendant] did not cross-move for summary judgment dismissing those objections on the basis of the statute of limitations, nor did he argue it in opposition. In view of the limited scope of [plaintiff's] motion, it was not appropriate to search the record and award summary judgment to [defendant] dismissing these objections upon arguments that were not raised ... . Matter of Ray C., 2015 NY Slip Op 04134, 2nd Dept 5-13-15

















A Request for an Admission Which Goes to the Heart of the Litigation Is Improper---Defendant Should Have Been Allowed to Withdraw Its Admission that Its Employee Was Acting Within the Scope of His Employment When a Vehicle Accident Occurred


The Second Department determined Supreme Court should have allowed defendant to withdraw admissions made in response to a notice to admit. Plaintiff was involved in an accident with a vehicle driven by an employee of defendant, Islip Pizza.  In response to a notice to admit, the defendant stated that the employee was acting in the scope of his employment at the time of the collision. Because defendant's liability, under the doctrine of respondeat superior, depended entirely on whether the employee was acting within the scope of his employment, the admission went to the heart of the matters at issue. A request for an admission which deals with an ultimate conclusion is improper (CPLR 3123 (a)). Defendant should have been allowed to withdraw it (CPLR 3123 (b)):


Under CPLR 3123(a), a party may serve upon another party a written request that it admit, among other things, "the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry" (CPLR 3123[a]). The legislative policy underlying CPLR 3123(a) is to promote efficiency in the litigation process by "eliminat[ing] from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper" ... . Furthermore, under CPLR 3123(b), a court may at any time permit a party to amend or withdraw any admission "on such terms as may be just" (CPLR 3123[b]...).  Altman v Kelly, 2015 NY Slip Op 04076, 2nd Dept 5-13-15






Corporate Officer May Be Personally Liable for Torts Committed in the Performance of Corporate Duties/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Is Submitted) Explained


The Second Department determined defendant's motion to dismiss for failure to state a cause of action was properly denied.  Plaintiff alleged he tripped and fell over a hole left when a for sale sign was removed. The defendant moved to dismiss alleging the property was owned by the corporation of which defendant was the sole shareholder.  The Second Department noted that an officer of a corporation may be personally liable for torts committed in the performance of corporate duties. The court explained its role in determining a motion to dismiss for failure to state a cause of action where documentary evidence is submitted: "When a defendant submits evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one ... . "[U]nless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, . . . dismissal should not eventuate... '. [quotations omitted] Orlando v New York Homes By J & J Corp., 2015 NY Slip Op 04104, 2nd Dept 5-13-15






In Order for a Municipality to Be Liable for the Creation of a Dangerous Condition, the Dangerous Condition Must Result Immediately from the Negligent Act---Here the Allegation the Dangerous Condition Developed Over a Period of Years Was Not Sufficient


The Second Department noted that the "prior written notice" requirement (as a prerequisite for municipal liability for a dangerous condition) is independent of any actual or constructive notice of a defect.  Although there is an exception to the "prior written notice" requirement where the municipality created the defect through an affirmative act of negligence, that act of negligence must immediately result in the existence of a dangerous condition. It is not sufficient to allege that the defect developed over a period of years (here allegedly stemming from work done in 2008):


"A municipality that has adopted a prior written notice law' cannot be held liable for a defect within the scope of the law absent the requisite written notice" ... . A defendant's actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement ... . Further, although an exception to the prior written notice requirement exists where the municipality created the defect through an affirmative act of negligence ..., that exception "[is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition"... . DeVita v Town of Brookhaven, 2015 NY Slip Op 04086, 2nd Dept 5-13-15






Question of Fact Whether Property Owners Owed a Duty to Protect Plaintiff from an Assault During a Fair on the Premises


The Second Department determined there was a question of fact whether the defendants, who held a fair on their premises, were liable to plaintiff who was attacked by two teenage boys during the fair. There was evidence a security guard had been notified that a fight was about to break out and did nothing:


"While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control" ... . Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults ... .


Here, the church defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the infant plaintiff's injuries resulted from an unexpected and unforeseeable assault ... . However, in opposition, the plaintiffs raised a triable issue of fact as to whether the assault of the infant plaintiff was unexpected and unforeseeable. The plaintiffs presented a transcript of the deposition testimony of the infant plaintiff's girlfriend, who explained that, approximately 30 minutes before the subject incident, she spoke to a security guard at the fair and advised him that there was a "confrontation" and that it was "getting worse." Bisignano v Raabe, 2015 NY Slip Op 04081, 2nd Dept 5-13-15






Criteria for Setting Aside a Verdict as Against the Weight of the Evidence Explained


The Second Department determined plaintiff's motion to set aside the defense verdict as against the weight of the evidence was properly denied.  Plaintiff, a bicyclist, was injured when he struck the open door of defendant's (Roche's) vehicle.  Defendant testified the door was ajar, not fully open: "A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence ... .  A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause ... . [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view... . However, where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, because the only reasonable view of the evidence is that a defendant's negligence was a proximate cause of the plaintiff's injuries, that verdict must be set aside as contrary to the weight of the evidence ... . In this case, it was within the jury's province to credit Roche's testimony that she did not open her car door into the plaintiff's path. The jury reasonably could have concluded that Roche was negligent in some other respect—such as the positioning of her car or her act of leaving the door "slightly ajar"—but that, despite such negligence, the plaintiff should have been able to avoid the collision and, thus, his conduct was the sole proximate cause of the accident." [quotations omitted] Membreno v Roche, 2015 NY Slip Op 04102, 2nd Dept 5-13-15






Defect Was Trivial As a Matter of Law---Criteria Explained


The Second Department determined the slip an fall case should have been dismissed.  The defect was trivial as a matter of law: "... [P]roperty owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip ... . There is no minimal dimension test or per se rule that the condition must be of a certain height or depth to be actionable ... . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury ... . "Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable ... ". [internal quotations omitted]  Santacruz v Taco Bell of Am., LLC, 2015 NY Slip Op 04111, 2nd Dept 5-13-15





Confinement in Special Housing Unit Was Harsh and Excessive Punishment---No Showing Petitioner Was a Threat to Institutional Safety


The Third Department determined petitioner posed no threat to institutional safety and, therefore, his confinement in a special housing unit constituted harsh and excessive punishment:


... [B]ecause neither the charges of which he is guilty nor the evidence presented at the hearing establishes that petitioner's conduct was a threat to institutional safety and security, we find that the imposition of confinement in the special housing unit is harsh and excessive ... . Matter of Kim v Annucci, 2015 NY Slip Op 04178, 3rd Dept 5-14-15






Single Act of Excessive Corporal Punishment Justified Neglect and Derivative Neglect Findings/Single Act of Domestic Violence Did Not Justify Neglect and Derivative Neglect Findings---No Proof the Three-Month-Old Child Was Aware of the Domestic-Violence Incident


The Second Department determined a single act of excessive corporal punishment (slamming to the floor and choking) justified a finding of neglect and derivative neglect.  However a single act of domestic violence did not justify the same findings because there was no proof the three-month-old child was aware of the domestic violence.


[Re: corporal punishment, the court wrote:] "While parents have the right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect ... . A single incident of excessive corporal punishment may suffice to sustain a finding of neglect..." .


[Re: witnessing domestic violence, the court wrote]: "While domestic violence may be a permissible basis upon which to make a finding of neglect, [n]ot every child exposed to domestic violence is at risk of impairment'" ... . Here, although there was testimony that the father engaged in an act of domestic violence against the mother while [the child], then three months old, was somewhere in the room, there is no evidence that the child saw, or was aware of, what happened, or that his emotional condition was impaired or placed in imminent danger of impairment by it ...". Matter of Dalia G. (Frank B.), 2015 NY Slip Op 04127, 2nd Dept 5-13-15






Mother's Petition to Relocate Should Not Have Been Denied---Analytical Criteria Described


The Second Department determined Family Court should not have denied mother's petition to relocate. The analytical criteria were described as: "When reviewing a custodial parent's request for permission to relocate, the court's primary focus must be on the best interests of the child ... . Although each custodial parent's request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the children and each parent, the impact of the move on the quantity and quality of the children's future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the children may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements ... . In relocation proceedings, this [the appellate court's] authority is as broad as that of the hearing court, and a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record ...". [quotations omitted] Matter of DeCillis v DeCillis, 2015 NY Slip Op 04126, 2nd Dept 5-13-15






Online Promotion Which Offered a Coupon to Persons Who Provided His or Her Email Address Did Not Constitute an "Offer" Which Could Be "Accepted" to Create a Contract/In Light of the Disclaimers the Promotion Was Not "Deceptive" and Plaintiff Suffered No "Actual Injury" within the Meaning of the General Business Law


Plaintiff brought a putative class action alleging an act of deception in an online business promotion.  Defendants "offered to provide to visitors to their website who entered their email address a $1 coupon toward the purchase of their products and further promotional materials." The complaint alleged the members of the class provided their email addresses but never received a coupon. The Second Department determined the complaint, which alleged breach of contract and a violation of General Business Law 349, was properly dismissed. Because the website indicated the supply of coupons was limited, there was no clearcut "offer" which could form a contract upon acceptance. The online promotion constituted only an "invitation for offers." Because of the disclaimers, the promotion was not "deceptive" within the meaning of General Business Law 349. Nor did the plaintiff suffer any "actual injury" within the meaning of General Business Law 349:


...[T]he defendants made a prima facie showing that the online promotion did not constitute an offer. Rather, it constituted only an invitation for offers, in light of the fact that the promotion expressly stated that the supply of coupons was "limited." In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, extrinsic evidence was not admissible to interpret the promotional materials under the circumstances herein ... . The record thus showed as a matter of law that the promotion did not create the power of acceptance for consumers and, consequently, no unilateral contract was formed... . * * *


[Re: General Business Law 349], in addition to showing that the conduct was consumer oriented, "[a] prima facie case requires . . . a showing that [the] defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof" ... . "Whether a representation or an omission, the test is whether the allegedly deceptive practice is likely to mislead a reasonable consumer acting reasonably under the circumstances'" ... . A plaintiff must also show that he or she suffered an actual injury, as a result of the deceptive act or practice... . ...


...[T]he defendants ... showed ... that the plaintiff did not suffer any "actual injury," for purposes of the General Business Law § 349 cause of action. To recover damages under General Business Law § 349, a plaintiff need not prove intent to defraud or justifiable reliance ... . The plaintiff may not "set[ ] forth deception as both act and injury" ... . Here, the record showed as a matter of law that the plaintiff suffered no actual injury, apart from the alleged deceptive act itself ... . Amalfitano v NBTY, Inc., 2015 NY Slip Op 04077, 2nd Dept 5-13-15






"Bankruptcy" Exclusion in a Political Risk Insurance Policy Applied---Insurer Not Obligated to Cover Loss Occasioned by Bankruptcy Proceedings in Mexico


The First Department, in a full-fledged opinion by Justice Gonzalez, determined that the "bankruptcy" exclusion in a Political Risk Insurance Policy applied to court proceedings in Mexico and the insurer was therefore entitled to disclaim coverage for the related loss to plaintiff.  The core issue was the meaning of "bankruptcy."  The plaintiff argued the term referred to a final adjudication of bankruptcy. But the court held the definition was much broader, and included the ongoing court proceedings in Mexico.  The fact that the plaintiff and defendant disagreed about the definition of "bankruptcy" did not render the policy-contract ambiguous.  Applying the plaintiff's narrow definition would have rendered other provisions of the policy-contract superfluous:


We agree with defendant that plaintiff's definition of bankruptcy (a final judgment of reorganization or liquidation) is overly narrow. Bankruptcy is generally understood to include being under the judicial protection of a bankruptcy court - or, according to dictionary definition - "a statutory procedure by which a (usu[ally] insolvent) debtor obtains financial relief and undergoes a judicially supervised reorganization or liquidation. . . for the benefit of creditors" (Black's Law Dictionary 175 [10th ed 2014]; see Compact Oxford English Dictionary 934-935 [2d ed 1999][same]).


Plaintiff contends that since the parties have conflicting interpretations of the term "bankruptcy," the policy must be ambiguous on this point, and points out that settled principles of interpretation of insurance contracts require resolution of any ambiguity in favor of the insured ... . However, "provisions in a contract are not ambiguous merely because the parties interpret them differently" ... . Here, common understanding supports interpreting the term bankruptcy as the court proceeding in which the debtor is afforded judicial protection while it reorganizes or liquidates.


Further, settled law requires that the terms of a contract be read in context ... . Plaintiff's definition of bankruptcy, i.e. the state of having been declared bankrupt, would render the accompanying alternatives in Section 4.12 of the policy (insolvency and financial default) superfluous. The redundancy can be eliminated only by accepting defendant's definition, an interpretation that gives meaning to every "sentence, clause, and word of [the] contract of insurance" ... . CT Inv. Mgt. Co., LLC v Chartis Specialty Ins. Co., 2015 NY Slip Op 04051, 1st Dept 5-12-15






Inability to Remember Fall and Absence of Witnesses Did Not Preclude Summary Judgment on Labor Law 240(1) Cause of Action


The First Department determined the plaintiff's inability to remember his fall from a scaffold and the absence of witnesses did not preclude summary judgment in his favor for the Labor Law 240(1) cause of action:


Plaintiff established his entitlement to judgment as a matter of law on the issue of liability in this action where he sustained injuries when, while performing asbestos removal work in a building owned by defendant, he fell from a baker's scaffold. Plaintiff's testimony that he was standing on the scaffold working, and then woke up on the ground with the scaffold tipped over near him, established a prima facie violation of the statute and that such violation proximately caused his injuries ... . That plaintiff could not remember how he fell does not bar summary judgment ... . Nor does the fact that he was the only witness raise an issue as to his credibility where, as here, his proof was not inconsistent or contradictory as to how the accident occurred, or with any other evidence ... . Strojek v 33 E. 70th St. Corp., 2015 NY Slip Op 04203, 1st Dept 5-14-15










Alterations to Easement Okay---They Did Not Interfere With the Easement-Holder's Right of Passage


The Third Department determined the alterations made to an ingress and egress easement along a private road, including the installation of a gate, were not actionable because they did not interfere with the easement holder's right of passage:


It is well settled that "[t]he extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties" ... . Here, the easement specifically granted plaintiff and defendants the right of "ingress and egress and for electric, gas, water, sewer and similar services over, under and along [the] farm road" on the McLean property. Importantly then, "[a] right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed" ... . In the absence of a demonstrated intent to provide otherwise, an easement of ingress and egress may be narrowed, covered, gated or fenced off, "'so long as the easement holder's right of passage is not impaired'"... . Boice v Hirschbihl, 2015 NY Slip Op 04191, 3rd Dept 5-14-15






Mortgagee in Possession Has a Duty to Care for the Property/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action, Where Documentary Evidence Is Submitted, Explained


In the context of a motion to dismiss for failure to state a cause of action (where documentary evidence was submitted), the Second Department determined a mortgagee in possession of property (here because the property owner went bankrupt) has a duty to care for the property which is identical a property owner's duty.  Here plaintiffs alleged the property, which had been damaged by fire, was allowed to deteriorate to the extent that plaintiffs' neighboring property was damaged. The causes of action for nuisance, negligence and trespass survived the motion to dismiss.  The court noted its role when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:


A motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ... . While the documentary evidence submitted by One West established that it did not own the defendants' property at any relevant time ... , that evidence did not "utterly refute" the plaintiffs' contention that One West had a duty based on its status as a mortgagee in possession. In fact, the documents, which establish ownership, did not address the plaintiffs' contention regarding One West's alleged status as a mortgagee in possession ... . Accordingly the Supreme Court erred in granting the motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(1).


In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ... . "Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ... .


The plaintiffs' contention that [defendant] was a mortgagee in possession has not been shown to be "not a fact at all" ... . If [defendant] were, in fact, a mortgagee in possession, it was "bound to employ the same care and supervision over the mortgaged premises that a reasonably prudent owner would exercise in relation to his [or her] own property; he [or she] is bound to make reasonable and needed repairs, and is responsible for any loss or damage occasioned by his willful default or gross neglect in this regard" ... . Thus, the complaint, as augmented by the affidavit of the plaintiff Emeta Allen, which was submitted in opposition to the motion to dismiss ..., properly set forth causes of action alleging nuisance, negligence, and trespass, and the plaintiffs have causes of action sounding in nuisance, negligence, and trespass. Allen v Echeverria, 2015 NY Slip Op 04075, 2nd Dept 5-13-15







Questions of Fact Re: Whether a Deed Was Forged and Whether a Will Was Duly Executed


The Second Department determined there existed questions of fact whether a deed was a forgery and whether a will was duly executed.  In the course of the decision, the court explained: (1) there can be no bona fide purchasers or encumbrancers of real property based on a forged deed; (2) the transfer of title of real property devised under a will title vests on death not probate; (3) forged deeds are null and void ab initio; and (4) there was insufficient proof due execution of the will---no proof an attorney drafted the will or supervised its execution--no proof decedent possessed testamentary capacity:


Pursuant to Real Property Law § 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller ... . However, a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as it is void and conveys no title ... . ...


Generally, "title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator's death and not at the time of probate" ... . Here, however, since the validity of the will is being challenged by the petitioner, it was incumbent upon the respondents, as the proponents of the will, to prove due execution of the will and testamentary capacity ... . ...


... [T]he ... evidence was insufficient to establish that the will was executed in accordance with the formalities required by law (see EPTL 3-2.1), and that the decedent was of sound mind and memory when he executed the will and understood the nature and consequences of executing the will ... . While there is a presumption of regularity where the drafting attorney supervised the will's execution ..., here, there was no evidentiary support for the respondents' conclusory contention that the will was drafted by [the attorney] or that he supervised the execution ceremony. Moreover, the respondents failed to adduce any evidence demonstrating that the decedent possessed testamentary capacity when he signed the will. Matter of Raccioppi, 2015 NY Slip Op 04135, 2nd Dept 5-13-15






Claimant Did Not Demonstrate a Compelling Reason to Close His Business---Unemployment Insurance Benefits Denied


The Third Department determined a business owner who voluntarily closed his business was not entitled to unemployment insurance benefits because a compelling reason for the closure was not demonstrated:


"When a claimant closes an operating business, the issue of whether he or she is qualified to receive benefits turns upon whether there was a compelling reason to close the business" ... . Here, claimant testified that, beginning in 2009, his business began to decline and that, between 2009 and 2012, there was a 50% drop-off of catering contracts. The corporation's tax returns reflect, however, gross receipts of $297,167 in 2009, with a net income of $2,522, gross receipts of $281,397 in 2010, with a net income of $4,997, and gross receipts of $279,755 in 2011, with a net income of $764. Claimant's individual tax returns reveal that he was paid a moderate salary in each of these three years. At the time he closed the business at the end of August 2012, claimant estimated corporate gross receipts of $220,970 for the year to date, with a net income of $26,620, after payment of claimant's salary, in a sum that was lower than the prior years, but was not an extreme departure from his prior earnings. Although the decline in business had required claimant to reduce personnel, there was no proof that the business was otherwise unable to meet its financial obligations. Claimant owned the building where he ran the business, and there was no mortgage; the premises were rented to the business for favorable tax treatment. Although claimant testified that, at the time he closed the business he had no bookings for October 2012 to December 2012, he also testified that his business was seasonal and that this was generally a slow time. In our view, the record thus establishes that this was a viable business, and the Board's decision is supported by substantial evidence ... . Matter of O'Connell (Commissioner of Labor), 2015 NY Slip Op 04176, 3rd Dept 5-14-15


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