NEGLIGENCE



Res Ipsa Loquitur Proof Requirements Not Met Re: Cause of Fire



A fire apparently started in the vicinity of a gas grill resulting in the destruction of an apartment building.  In affirming summary judgment granted to the defendants, the Third Department noted that an unsigned report from the fire department was properly ignored by the motion court and plaintiff was not entitled to an inference of negligence based on the doctrine of res ipsa loquitur:



           …[P]laintiff has not established its entitlement to an inference of negligence pursuant to the doctrine of res ipsa loquitur. To do so, plaintiff was required to demonstrate, among other things, that the fire was one that ordinarily would not have occurred in the absence of defendants' negligence….   While plaintiff need not have eliminated every alternative explanation for the event, it was required to demonstrate that the probability of other causes was so reduced that defendants' negligence was more likely than not to have caused the injury….  In view of plaintiff's failure to proffer any admissible evidence – or, indeed, any evidence whatsoever based upon more than pure speculation – that negligence was a factor in the cause of the fire, plaintiff has not met its burden of demonstrating that res ipsa loquitor applies … .  92 Court Street…. v Monnet, et al, 514458, 3rd Dept, 5-30-13

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Emergency Doctrine Not Applicable to Striking Plaintiff’s Decedent’s Body in Roadway



The Third Department determined summary judgment should not have been granted to the defendant based upon the emergency doctrine.  Defendant struck the decedent’s body which was in the roadway.  Although defendant slowed when she saw the brake lights and flashers on vehicles ahead of her, she continued driving at about 50 miles per hour:



           We are not persuaded that these facts demonstrate, as a matter of law, that defendant was confronted with an emergency situation that left her with little time for deliberation or that her reaction was reasonable such that there was nothing she could have done to avoid the accident.  Notably, "it is not uncommon for motorists to encounter debris or other hazards in the roadway" …and, here, by defendant's own testimony, she had  notice from at least 20  or 30  car lengths away that something  out of the ordinary was  happening  on  the highway ahead  ….   Further, there is also deposition testimony of the front seat passenger in codefendants' vehicle, which had arrived at the scene and  first struck either decedent or his motorcycle.  This witness testified that, as decedent was  lying in the roadway, other vehicles stopped at the scene without striking him, and at least one other vehicle passed through the scene without incident.  In light of  this testimony,  "a question  arises as to whether defendant should have anticipated and been prepared to deal with the situation confronting [her]" and  whether  her actions were reasonable under the circumstances… .  Hallenbeck …v Smith…, 515155, 3rd Dept, 5-30-13





No Negligence Based on Defendant’s Dog Barking [Which Allegedly Caused Plaintiff to Fall from Her Horse as the Horse Broke Into a Run]



Plaintiff was injured when she fell from her horse.  The defendant was jogging behind the horse with her dogs. Plaintiff alleged barking caused the horse to break into a canter or a run.  The Third Department determined Supreme Court should have granted defendant’s motion for summary judgment.  After discussing the principles underlying assumption of the risk in this context and the permissible causes of action based on the behavior of animals, the Third Department wrote:

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           "The mere act of [walking] . . . in close proximity to an unknown horse, as the complaint alleges, does  not present an  issue of negligence, as a matter of law" …. In this regard, defendant – who had  no  prior experience with horses – was  walking on  a public highway, where  she had  every right to be  (see Vehicle and  Traffic Law  §  1156  [b]).  She slowed down  to evaluate the horses and riders ahead  of her, and, while she did not stop, she was  still 50 yards away when plaintiff and her daughter lost control of their horses. Morever, plaintiffs' negligence claim also fails because they alleged no facts from which it could be inferred that defendant's actions, in walking on a public street or otherwise, were the proximate cause of plaintiff's injuries … . Filer v Adams, 515403, 3rd Dept, 5-30-13

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No “Negligent Supervision” Cause of Action Against School Based on Student Attacking Another Student
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In ruling that the defendant school district’s motion for summary judgment in a “negligent supervision” case should have been granted, the Third Department determined the school district could not have reasonably anticipated the attack of one student upon another.  The school personnel had been alerted to the possibility of an impending fight between the two students and had intervened.  The school personnel were assured by the student who ultimately attacked plaintiff’s daughter that she did not intend to fight plaintiff’s daughter.  The Third Department wrote:
 

           …[A] school district will only be held liable for injuries intentionally inflicted by another  student  where  it is established that the dangerous conduct "could reasonably have been anticipated," i.e., where school authorities had actual or constructive notice of prior similar conduct on the part of the offending student ….  Even where such notice is present and the consequent duty of supervision is breached, the plaintiff must further show that the alleged injury "was a normal or foreseeable consequence of the situation created by the school's negligence"  … .The adequacy of supervision and the existence of proximate cause  are generally factual issues for a  jury to resolve … .
Regardless of any questions of fact regarding whether enough staff members were present in the hallway to prevent or break up the fight, defendant was entitled to summary judgment because it established that it could not have reasonably anticipated the attack.  Conklin v Saugerties Central School District, 515709, 3rd Dept, 5-30-13

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Driver Who Had Right of Way But Allowed Another Driver to Turn Can Be Liable to Motorist Struck by Turning Car​



The defendant stopped in the roadway when she had the right of way and gestured to an on-coming driver to make a left turn in front of her.  Plaintiff passed the defendant on the right and collided with the car making the turn.  The Third Department determined defendant’s motion for summary judgment should not have been granted:



           When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances; this duty is owed to pedestrians and other motorists and passengers as well as to the person who is being signaled … .  Dolce v Sheridan, 515766, 3rd Dept, 5-30-13

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Town Failed to Demonstrate It Conducted a Sufficient Search for Written Notice of Defect in Slip and Fall Case​



The Second Department determined a slip and fall case could go ahead because the town failed to submit sufficient proof in its summary judgment motion that town records were searched for the notice:
Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it had no prior written notice of the alleged defect in the parking lot…. In support of its motion, the defendant submitted the deposition testimony of its deputy director of the Department of General Services and an affidavit from its deputy comptroller. However, neither of those individuals averred that they had specifically searched the records maintained by the Town Clerk and the Town Superintendent of Highways to determine whether the defendant had prior written notice of the defect at issue. Accordingly, the burden never shifted to the plaintiff to raise a triable issue of fact, and this Court need not review the sufficiency of the plaintiff's opposition papers ….   Betz v Town of Huntington, 2013 NY Slip Op 03809, 2nd Dept, 3-29-13

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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

          The court properly denied the motion to compel because there is no merit to defendants' argument that the filing of this malpractice action placed the subject matter of the privileged communications "at issue." The invasion of the privilege is not required to determine the validity of plaintiffs' malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

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Town Failed to Demonstrate It Did Not Create Dangerous Condition---Summary Judgment in Favor of Town Denied---Exception to Written Notice Requirement​

The Second Department determined, in a slip and fall case, the town did not demonstrate (in support of its motion for summary judgment) that it did not create the alleged dangerous condition (an allegedly inadequate cover on a catch basin):

           If one of the recognized exceptions applies, written notice [of a defect] is not required…. Here, the plaintiff clearly alleged in her pleadings that the Town's construction of the catch basin was faulty in that an inadequate cover was installed on the catch basin. Consequently, the Town was required to address that issue satisfactorily as part of its initial burden on its motion for summary judgment…. The Town failed to establish, prima facie, that it had not created the dangerous condition by placement of an inadequate cover on the catch basin; in this respect, a defendant does not establish its entitlement to summary judgment merely by pointing out gaps in the plaintiff's case …. In the absence of the required showing, the Town's motion was properly denied, without regard to the sufficiency of the plaintiffs' papers submitted in opposition….  Giaquinto v Town of Hempstead, 2013 NY Slip Op 03814, 2nd Dept, 5-29-13

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Question of Fact Raised---Tennis Player Injured Stepping on Plastic Bottle at Edge of Court​

In playing tennis on defendant’s court, plaintiff, when back-pedaling to reach the ball, was injured when he stepped on a plastic water bottle which was behind a curtain separating the court from an adjacent wall.  In reversing Supreme Court’s grant of summary judgment to the defendant [Lifeplex], the Second Department determined Lifeplex had not demonstrated (1) it did not create the defective condition, (2) it did not have constructive notice of the condition, (3) plaintiff was injured in the playing area, and (4) whether the condition was concealed:
 

           Here, Lifeplex failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff's injury was within the playing area of the tennis court, and whether the condition was concealed. Thus, Lifeplex failed to make a prima facie showing that the plaintiff assumed a risk inherent in the sport of tennis ….  Moreover, in moving for summary judgment dismissing the complaint, Lifeplex had the initial burden of establishing "that it neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident"…. . "To meet its initial burden on the issue of . . . constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell"…. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice… .  Herman v Lifeplex, LLC, 2013 NY slip Op 03815, 2nd Dept, 5-29-13

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Failure to Eliminate Comparative Negligence Precluded Summary Judgment to Plaintiff In Car-Accident Action​

In reversing the grant of summary judgment to the defendant in a car accident case, the Second Department noted there can be more than one proximate cause of an accident and defendant failed to demonstrate freedom from comparative fault:

           "There can be more than one proximate cause of an accident"…. A driver who has the right-of-way may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in an intersection…. Indeed, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative…. Here, the transcripts of the deposition testimony of the plaintiff and the defendant, which were submitted in support of the defendant's motion, raised a triable issue of fact as to what actions the defendant took in order to avoid the collision. Therefore, the defendant failed to establish her prima facie entitlement to judgment as a matter of law … .  Jones v Vialva-Duke, 2013 NY Slip Op 03816, 2nd Dept, 5-29-13





Injury Not Connected to Accident/Motion to Set Aside Should Have Been Granted


In reversing Supreme Court and finding the motion to set aside the verdict should have been granted, the court determined there was no valid line of reasoning that led to the conclusion plaintiff’s serious injury was related to the car accident at issue:

           Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff's alleged serious injury was causally related to the subject automobile accident. Given the evidence of the plaintiff's previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff's expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff's injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury. McDonald v Kohanfars, 2013 NY Slip Op 03821, 2nd Dept, 5-29-13

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Emergency Doctrine Did Not Apply to Police Officer’s Striking Plaintiff with Patrol Car​

In reversing Supreme Court, the Second Department determined the emergency doctrine did not apply to a police officer’s striking the plaintiff with his patrol car and ordinary negligence principles applied:
 

           In the instant case, Officer DeMarco acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct - the failure to see that which was there to be seen - was not conduct specified in Vehicle and Traffic Law § 1104(b) as exempt from the rules of the road …. Accordingly, his conduct was governed by the principles of ordinary negligence …. In any event, since Officer DeMarco acknowledged at his deposition that, at the time he struck the plaintiff, he was "not aware of any emergency situation that needed to be addressed," the common-law emergency doctrine is not applicable to this case. Accordingly, the fifth affirmative defense, which is based upon Vehicle and Traffic Law § 1104, and the sixth affirmative defense, which is based upon the common-law emergency doctrine, must be dismissed.
 

           Under the principles of ordinary negligence, Officer DeMarco's failure to see what was there to be seen established the plaintiff's entitlement to judgment as a matter of law on the issue of liability… .  Starkman v City of Long Beach, 2013 NY Slip Op 03829, 2nd Dept, 5-29-13







CONTRACT



Provision Which Violates General Business Law 395-a (Re: Maintenance Agreements) Did Not Render Contract Null and Void

In a full-fledged opinion by Judge Read (with a dissent by Judge Smith) the Court of Appeals determined that a contract provision which violated General Business Law 395-a (2) did not render the contract null and void and a private right of action pursuant to General Business Law section 349 did not lie for the violation.  Section 395-a provides that a maintenance agreement covering parts and/or service can not be terminated by the party offering the agreement during the term of the agreement.  The maintenance agreement at issue included a “store closure” provision which allowed the defendant to terminate the maintenance agreement in the event of closure of the store issuing the agreement.  The Court assumed that the “store closure” provision violated the General Business Law but held the violation did not render the contract null and void.  The Court further determined the violation did not constitute a deceptive practice within the meaning of General Business Law 349.  Schlessinger…v Valspar Corporation, No 66, CtApp, 5-30-13





Defective Acknowledgment Rendered Prenuptial Agreement Invalid​



In a full-fledged opinion by Judge Graffeo, the Court of Appeals

determined that a defective acknowledgment on a prenuptial agreement was the type of defect that could be cured but that the notary’s affidavit was not sufficient to cure the defect.  Therefore, the prenuptial agreement was invalid.  The opinion includes an extensive discussion of the statutory requirements for acknowledgments and the limited circumstances in which defects can be cured.  With regard to the specific defect at issue, the Court of Appeals wrote:

           In the certificate of acknowledgment relating to the husband's signature, the "to me known and known to me" phrase was inexplicably omitted, leaving only the following statement: "On the 8 [sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same." Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective. Thus, we agree with the Appellate Division, which unanimously concluded that the certificate of acknowledgment did not conform with statutory requirements.  Galetta v Galetta, No 94, CtApp, 5-30-13

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Negligence and Fraudulent Misrepresentation Causes of Action Can Not Be Based on Allegations of Breach of Contract



In determining Supreme Court should have dismissed the negligence and fraudulent misrepresentations cause of action in a complaint based upon breach of contract, the Third Department wrote:



           "[A] simple breach of contract claim is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . .[, which] legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract" ….  Plaintiffs have not demonstrated any special relationship or legal duty aside from the contractual relationship….   The  negligence and  fraudulent misrepresentation claims are based upon  the same  alleged wrongful conduct as the breach of contract claim, rendering them duplicative … .  Rorok v Moore’s Flatwork…, 515459, 3rd Dept, 5-30-13

Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial​

The First Department determined that a retainer agreement for work “up to” a trial in a divorce action precluded the law firm from recovering any fees for the trial.  To cover those fees a second retainer agreement was required:

           The plain language of the retainer states that the law office's representation of Blisko includes work leading "up to" a trial, "but not including an actual trial." Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer …. Law Off of Sheldon Eisenberger v Blisko, 2013 NY Slip Op 03802, 1st Dept,. 5-28-13

Contract Provision Protected Contractee from Damages for Delay Caused by Regulators​

In a full-fledged opinion by Justice Mazzarelli, the First Department determined, among many other contract-issues, that delays allegedly caused by regulators (re: asbestos-removal) were included in the contract provision which insulated the contractee from delay-related damages:

           "A clause which exculpates a contractee from liability to a contractor [Bovis] for damages resulting from delays in the performance of the latter's work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally"…. However, such a clause may be disregarded under certain recognized exceptions, including one for delays that are "uncontemplated" …. Delays are not considered uncontemplated when they "are reasonably foreseeable, arise from the contractor's work during performance, or . . . are mentioned in the contract" …. Further, a party seeking to invoke any of the exceptions to the general rule that no damages for delay clauses are enforceable bears a heavy burden … .
 

           Here, Bovis failed to carry its heavy burden. The contract specifically anticipated the possibility that the involvement of regulators would delay the process. Again, Bovis expressly acknowledged that it assumed the "risk of all regulatory and other Governmental Authority delays." Certainly this lifted the no damages for delay clause out of the exception for uncontemplated delays. There is no basis for Bovis to argue that by alleging that the extent of the regulatory delays was extreme and unprecedented it stated a claim for delay damages. As this Court has stated in finding a no damages for delay clause enforceable, "[W]hile the conditions themselves may not have been anticipated, the possibility, however unlikely, of their arising was contemplated and addressed by the parties in their agreement" … .  Bovis Lend Lease (LMB), Inc v Lower Manhattan Dev Corp, 2013 NY Slip Op 03804, 1st Dept, 5-28-13







FAMILY LAW



Imposition of Separate and Contradictory Permanency Goals for Father and Mother Disallowed



In reversing Family Court, the Third Department determined the imposition of separate and contradictory permanency goals violated Family Court Act 1089 [d] [2] [i]:



           At the end of the hearing, Family Court continued the children's placement and approved petitioner's goal of reunification as to the mother only. As to the father, the court disapproved the goal of reunification, directed petitioner to commence a permanent neglect proceeding to terminate his parental rights and suspended his supervised visitation.  *  *  *



           Family Court erred by imposing separate and contradictory permanency goals on the mother and father.  Upon concluding at the end of a permanency hearing that a child is not to be returned immediately to a parent, the court must determine whether the permanency goal should be approved or modified and may select among five statutory permanency goals (see Family Ct Act § 1089 [d] [2] [i]; …).  These "goal[s] are listed as alternatives, with the court to choose only one.  Nothing in the statute indicates that the court may select and impose on the parties two or more goals simultaneously" … .  The statute contemplates the commencement of termination proceedings against a parent only when the permanency goal is "placement for adoption" (Family Ct Act § 1089 [d] [2] [i] [B]). To require such proceedings as to one parent where, as here, the permanency goal is reunification with the other parent is not only inconsistent with the statutory goals but also with the overall goal of permanent neglect proceedings, to further the children's best interests by freeing them for adoption when positive parental relationships no longer exist … .  In the Matter of Julian P, 512450, 3rd Dept, 5-30-13

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Mother’s Prior Consent to Placement with Sister Did Not Preclude Mother’s Petition for Custody​



The Third Department reversed Family Court’s dismissal of the biological mother’s petition for custody of a child who had been placed with her sister with the biological mother’s consent.  The Third Department determined the mother’s prior consent to custody did not preclude her petition and the respondent, as a nonparent, bore the responsibility to demonstrate extraordinary circumstances warranting her custody of the child.  The Third Department noted:



           …[W]hile "no parent has an absolute right to custody of a child . . . it is settled law that, as between a biological parent . . . and a nonbiological parent . . ., the parent has a superior right that cannot  be  denied  unless the nonparent  can establish that the parent has relinquished that right because of 'surrender, abandonment,  persisting neglect, unfitness or other like extraordinary circumstances'" … .  In the Matter of Evelyn C …, 514179, 3rd Dept, 5-30-13





Family Court Should Have Allowed Mother to Subpoena Medical Records to Rebut Allegations Against Her In Custody Proceeding​

The Second Department determined Family Court erred when it denied the mother’s subpoena for medical treatment records to rebut the allegations against her in a custody proceeding:

           Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court ….  Matter of Murphy v Lewis, 2013 NY Slip Op 03843, 2nd Dept, 5-29-13

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Family Court Has Power to Issue Judgment for Child Support Arrearages​



After Family Court ruled it did not have jurisdiction to issue a judgment for child support arrearages, the Third Department determined that the court did in fact have jurisdiction.   In a full-fledged opinion by Justice Peters, the Third Department wrote:



           While "Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute" …, it is empowered "to determine applications to modify or enforce judgments and orders of support" … .In that regard, petitioner [child support collection unit] is authorized to commence violation proceedings "on behalf of persons" who receive child support pursuant to a court order … .  *  *  *



           Petitioner thus acted well within its statutory authority in commencing this proceeding to enforce a child support order that respondent had "fail[ed] to obey,"  and  Family  Court  likewise had  subject  matter  jurisdiction to consider it… .  In the Matter of Chemung County Support Collection Unit…v Greenfield, 515864, 3rd Dept, 5-30-13







FRAUD



Statute of Limitations for Fraud Applies to Forgery​

The Second Department noted that the statute of limitations provisions for fraud are applied to forgery:

           Contrary to the plaintiff's contention, the statute of limitations for a fraud cause of action applies to a cause of action alleging forgery … .The statute of limitations for a fraud-based cause of action requires that the action be commenced within six years after the allegedly fraudulent act or within two years after discovery, whichever is later….   Faison v Lewis, 2013 NY Slip OP 03813, 2nd Dept, 5-29-13

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SPOLIATION



Preclusion Proper Remedy for Discarding of Computer Containing Crucial Evidence​

The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence:
 

           Plaintiff's conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court's assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff's bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff's disposal of the subject computer was, at the very least, grossly negligent ….  Defendants established that plaintiff's spoliation of critical evidence compromised defendants' ability to prosecute their counterclaims … . Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Harry Wiess, Inc v Moskowitz, 2013 NY Slip Op 03927, 1st Dept, 5-30-13



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APPEALS



Appellate Court Can Grant Summary Judgment to Nonappealing Party



In the course of a decision awarding partial summary judgment to the defendant, the Third Department noted that “this Court has the authority to grant summary judgment to a nonappealing party” and did so with regard to a nonappealing defendant as well.  Shree Shiv Shakti Corp… v Khalid Properties, LLC, 515810, 5-30-13







REAL ESTATE



Erroneous Boundary Line Agreement Presents Triable Issue of Fact Re: Liability of Title Insurance Company



In reversing Supreme Court, the Second Department determined there was a triable issue of fact about whether the defendant title insurance company was liable for a defect in title (boundary line agreement) which resulted in plaintiffs owning half the property they thought they were purchasing:

           …Chicago Title established, prima facie, that the defect in title fell within exclusion 3(c) of the policy, which excludes from coverage defects "resulting in no loss or damage to the insured claimant." Chicago Title presented an affidavit from a certified real estate appraiser opining that the plaintiffs have not sustained any loss in property value as a result of the boundary line agreement. Indeed, Chicago Title's appraiser opined that the boundary line agreement resulted in a benefit to the plaintiffs and added significant value to their property due to the government's maintenance and nourishment of the beach. In opposition, however, the plaintiffs raised a triable issue of fact as to whether they suffered a loss or damages as a result of the defect in title. The plaintiffs submitted an affidavit of their certified real estate appraiser, who opined that the total loss to the plaintiffs of all title to the portion of their purchased premises lying to the south of the 188-foot line constituted a measurable diminution in the value of the plaintiffs' purchase. In light of these conflicting expert opinions, there is a triable issue of fact as to whether the plaintiffs sustained a loss or damages as a result of the defect in title …. Nastasi v County of Suffolk, 2013 NY Slip Op 03824, 2nd Dept, 5-29-13

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Fact Deed Not Recorded Did Not Rebut Presumption of Delivery and Acceptance of Deed​

In reversing Supreme Court, the Second Department determined the proof in this action to quiet title demonstrated that plaintiff’s decedent was the rightful owner of the subject property.  The Second Department noted the fact that the deed was not recorded did not overcome the presumption of delivery and acceptance of the deed:
 

           Although the presumption of delivery and acceptance of a deed as of its date "must yield to opposing evidence…, here, no admissible evidence which would have overcome the presumption was presented in opposition to the evidence showing that the 1996 deed was executed in the presence of and delivered to the parties' mutual attorney …. The fact that the deed was not recorded was not sufficient evidence to overcome the presumption of delivery of the deed to the attorney, the mutual agent of both parties, since recording is not required in order to transfer title to real property (see Real Property Law § 291). No evidence was presented that the delivery of the deed on the date of its execution was conditional.  Saline v Saline, 2012 NY Slip Op 03827, 2nd Dept, 5-29-13