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THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGED BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over a two-justice dissenting opinion, determined the negligence action against the Jewish Child Care Association (JCCA) properly survived summary judgment. The JCCA placed a 29-week-old child with a foster mother (Pineda). The child was left in the care of the teenaged boyfriend of Pineda’s daughter and suffered brain damage at the hands of the boyfriend:

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The record suggests that JCCA may have been negligent in at least five respects. First, the agency placed the child in Ms. Pineda’s home when he was a newborn, even though it had previously determined that children under five should not be placed with her because she was working or looking for work, and that her home required “stabilizing,” because her 16 year-old-daughter had recently given birth to a baby with special needs. Second, JCCA failed to ensure that an appropriate child care plan was in place after it had determined that Ms. Pineda was employed outside the home, as the applicable regulation requires… .. Moreover, there is no evidence that JCCA had ever advised Ms. Pineda that she needed to seek approval of her child care plan. Third, JCCA had notice, prior to the date on which the child was injured, that at least one unauthorized person was caring for him, but failed to take any action to rectify this, violating its own rules and the relevant regulation … . Fourth, JCCA’s contract with Ms. Pineda stated merely that she was not to leave the infant plaintiff without competent supervision. This violates the applicable regulation, entitled “Certification or approval of foster family homes,” which requires agencies to have foster parents acknowledge in writing that they will not “leave children under the age of 10 years alone without competent adult supervision” … . Moreover, Ms. Pineda testified that she was never advised that she was not permitted to leave a foster child in the care of someone under 18. Finally, … JCCA had failed to visit the home for a three-month period, in violation of its own requirement of at least two contacts per month, with at least one to take place in the home. Under these circumstances, a jury could find that, had the agency followed the applicable regulations and its own rules, the special needs infant plaintiff might never have been left alone with a teenager already caring for his own special needs infant, and who was prohibited from caring for the infant foster child.

Where the acts of a third person intervene between a defendant’s negligent conduct and a plaintiff’s injury, the causal connection between the two is not severed as a matter of law. Rather, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. De’L. A. v City of New York, 2017 NY Slip Op 08897, First Dept 12-21-17

 

NEGLIGENCE (THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/FOSTER CARE (NEGLIGENCE, PLACEMENT AGENCY, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/PLACEMENT AGENCY (FOSTER CARE, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/FAMILY LAW (FOSTER CARE, PLACEMENT AGENCY, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))

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BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT).

The Third Department determined the action against the insurance broker, alleging the broker failed to procure the necessary insurance, was properly dismissed. Plaintiff was injured when he fell off a ladder and obtained a more than $6,000,000 verdict against the property owner. The property owner’s insurance included an exclusion of coverage for construction workers. The broker had sent a letter to the property owner alerting the owner to the exclusion and stating that such coverage could be purchased:

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At best, plaintiff established that [the property owner] made a generalized request for liability coverage, and it is well-settled that such a generalized request is insufficient to satisfy the requirement that a specific request for a particular type of coverage be made … . …

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Even assuming, without deciding, that plaintiff submitted sufficient proof demonstrating the existence of a special relationship [between the property owner and the defendant broker], the record demonstrates that defendant fulfilled any corresponding duty of advisement that it may have owed to plaintiff’s assignors based upon defendant’s unambiguous letter advising [the property owner], in writing, that additional insurance coverage for injuries to construction workers was available and could be procured upon request …  and [the property owner’s] testimony that he was aware that injuries to construction workers were specifically excluded from the policy that he purchased. Because the record is devoid of any specific request for such additional coverage ever having been made … , we find that defendant’s motion for summary judgment dismissing the complaint against it was appropriately granted … . Cromer v Rosenzweig Ins. Agency Inc., 2017 NY Slip Op 08926, Third Dept 12-21-17

 

INSURANCE LAW (BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT))/SPECIAL RELATIONSHIP (INSURANCE LAW, BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT))

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FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT).

The Third Department determined the fact that father’s sister was a supervisor in St. Lawrence County Department of Social Services (SLCDSS) did not present a conflict of interest such that SLCDSS could not prosecute a neglect petition. Family Court had transferred the matter to the Jefferson County Department of Social Services (JCDSS):

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In SLCDSS’s papers submitted in response to petitioner’s motion, SLCDSS noted that the father’s sister is a grade A supervisor in its Child Preventive Services Unit and, in light of the neglect petition, the case would be transferred from the Child Protective Unit to the Child Preventive Services Unit. The mere fact, however, that the father’s sister was employed with SLCDSS as a supervisor does not justify disqualifying SLCDSS from prosecuting the neglect petition, especially where SLCDSS does not demonstrate that such fact created actual prejudice or a substantial risk of an abuse of confidence … . Moreover, the record discloses that since Family Court’s order, SLCDSS has taken steps to ensure that the father’s sister has no supervisory role in the father’s case. In view of the foregoing, we find that no conflict of interest exists prohibiting SLCDSS from prosecuting the neglect proceeding … . Matter of Gage II. (Rachel JJ.), 2017 NY Slip Op 08931, Third Dept 12-21-17

FAMILY LAW (MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/MUNICIPAL LAW (FAMILY LAW, DSS, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/NEGLECT (FAMILY LAW, MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))

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MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department determined grandmother had met her burden showing extraordinary circumstances warranting the award of custody to her. The matter was remitted for a determination whether the grandmother’s custody was in the best interests of the child. The court noted that Family Court should not have dismissed mother’s petition for custody for failure to show a change in circumstances. Custody was previously awarded to grandmother by consent:

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“[W]here, as here, a parent seeks to regain custody from a nonparent . . .[,] it is well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter” … .A prior “consent order, standing alone, does not constitute a judicial finding [or an admission] of surrender, abandonment, unfitness, neglect or other extraordinary circumstances” … .

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As to the issue of extraordinary circumstances, as relevant here, a grandparent “may make the requisite showing of extraordinary circumstances . . . by establishing that there has been an ‘extended disruption of custody'” … . An extended disruption of custody includes, “but [is] not limited to, a prolonged separation of the . . . parent and the child for a least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the . . . grandparent” … . When considering whether the parent voluntarily relinquished care and control of the child and the child resided with the grandparent for the requisite period of time, factors to consider “‘include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role'” …  .

Once the maternal grandmother met her threshold burden, Family Court was obligated to determine what disposition would be in the child’s best interests … . Matter of Christy T. v Diana T., 2017 NY Slip Op 08916, Third Dept 12-21-17

 

FAMILY LAW (MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))/CUSTODY (NONPARENT, MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))

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RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, over a two-justice dissent, determined that the evidence did not support removing the child from the mother’s custody:

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Although a prolonged separation between a parent and child may support a finding of extraordinary circumstances… , here, the limited record does not warrant a finding of extraordinary circumstances on this basis. The grandmother was the primary physical custodian for most of the younger child’s life, but there is no claim or evidence that the mother abdicated her responsibilities, and the record indicates that she had unsupervised parenting time with both children since 2004 and has been a joint custodian since at least December 2014 … . The history of neglect is relevant …, but the mother’s history — though tragic — was remote and there was no evidence or claim that she has failed to comply with the recommendations and obtain the treatment offered by DSS in recent times or that she has failed to remain involved in the children’s lives … . … While we acknowledge that Family Court had due cause for concern, absent extraordinary circumstances, we necessarily must find that the mother is entitled to retain custody of the younger child … . Although certainly not dispositive, it is important to recognize that the attorneys for the children have both supported the mother’s appeal.

Even were we to accept that the prior history established a basis for finding extraordinary circumstances, given that the grandmother allowed the children to reside with the mother since September 2015 and refused to resume her role as primary physical custodian, there has clearly been a change of circumstances … . The record otherwise shows that the mother has provided a stable home and appropriate medical care for the younger child, who has maintained excellent grades in school and participates in positive extracurricular activities, such as the boy scouts. From our reading of the Lincoln hearing, we do not get the impression that the younger child’s testimony was coached. As such, we would also conclude that the placement of physical custody with the mother is in the younger child’s best interests. Matter of Connie VV. v Cheryl XX., 2017 NY Slip Op 08913, Third Dept 12-21-17

 

FAMILY LAW (CUSTODY, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))/CUSTODY (FAMILY LAW, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))

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DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, over a two-justice dissenting opinion, determined that defendant’s conviction in this murder case was supported by the weight of the evidence. The dissent argued that defendant’s videotaped statement supported the justification defense and no other evidence presented by the People refuted it. The opinion includes a comprehensive discussion of the appellate court’s weight of the evidence analysis:

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Weight of the evidence review involves a two-step approach. (People v Romero, 7 NY3d 633, 643 [2006]). First, the Court must determine whether, based on all the credible evidence, an acquittal would not have been unreasonable (id.; People v Bleakley, 69 NY2d 490, 495 [1987]). If so, then the appellate court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony … . That step is performed by weighing the evidence against the elements as charged to the jury … . The evidence must be of such weight and credibility as to convince the Court that the jury’s finding of the defendant’s guilt beyond a reasonable doubt was justified … . * * *

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Viewing all of the record evidence in light of the first prong of the Romero-Bleakley standard, had the jury credited defendant’s account of the events surrounding the shooting, it could have reasonably found that defendant was, as the trial court instructed, “justified in the use of deadly physical force, . . . hav[ing] honestly believed that it was necessary to defend himself from what he honestly believed to be the use or imminent use of such force by Steven Mari and [that] a reasonable person in the defendant’s position, knowing what the defendant knew, and being in the same circumstances would have believed that too.” Thus, had the jury credited defendant’s statement, it would not have been unreasonable for the jury to have acquitted defendant … .

Turning to the second step of the Romero-Bleakley analysis, at the outset, there is no basis for disturbing the jury’s rejection of defendant’s videotaped statement. Defendant’s statements … were materially inconsistent, and defied credulity. People v Sanchez, 2017 NY Slip Op 08899, First Dept 12-21-17

 

CRIMINAL LAW (WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))

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GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department determined the evidence of serious physical injury, an element of the gang assault charge, was supported by sufficient evidence presented to the grand jury. However, prosecutorial misconduct during the grand jury proceedings warranted dismissal of the indictment (the People may represent however):

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We agree with the People that the evidence before the grand jury was legally sufficient to establish that the victim sustained a serious physical injury. While the medical records introduced in evidence were uncertified and were thus hearsay, the victim himself was competent to testify to “readily apparent external physical injuries of which he obviously [had] personal knowledge” … .

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We agree with the court, however, that the prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired … .. The prosecutor acted improperly in repeatedly asking leading questions of his witnesses … , and in introducing hearsay evidence … . During his cross-examination of defendants, the prosecutor improperly asked them whether other witnesses were lying … ., and he asked Blauvelt, without any evident good faith basis, whether defendants used illegal drugs on the night of the altercation and whether they used steroids in general … .. “Most egregiously,” as described by the court, the prosecutor acted as an unsworn witness by stating personal opinions relevant to material issues during his instructions to the grand jury, i.e., that younger people are more likely than older people to start fights, and that the victim’s injuries must have resulted from “a substantial beating” … . We remind the People that a prosecutor owes “a duty of fair dealing to the accused” at a grand jury proceeding and, more generally, that a prosecutor “serves a dual role as advocate and public officer,” and must “not only . . . seek convictions but [must] also . . . see that justice is done” … . People v Blauvelt, 2017 NY Slip Op 08948, Fourth Dept 12-21-17

 

CRIMINAL LAW (GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, GRAND JURY, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/PROSECUTORIAL MISCONDUCT (MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, GRAND JURY, SERIOUS PHYSICAL INJURY, GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE TESTIMONY OF THE VICTIM WAS SUFFICIENT (FOURTH DEPT))

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DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).

The Third Department determined defendant Enerco was entitled to discovery of information demonstrating the retail distribution of the type of clothes distributed by defendant Star of India which had caught fire from a heater manufactured or distributed by defendant Enerco. The court held that Enerco did not have to rely on a printout created by Star of India purporting to demonstrate Star of India did not distribute the clothes in question. The court also held that Enerco’s motion to amend its answer was properly denied. There was evidence Enerco had led parties to believe it was not going to assert the cross-claims it sought to include in the amended answer, thereby limiting questioning during a deposition:

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… [T]he Enerco defendants do not rely on mere speculation for their discovery demand. Based upon this, together with the fact that the search results are entirely dependent upon the search terms that are used and that [the party] was unable to explain how the results she relied upon were generated, we find that the complete contents of the database from 2004 to 2009 “may be fairly characterized as useful and reasonable” … .Furthermore, our review of the record does not suggest that disclosure of the contents of the database for this specific period would be unnecessarily onerous or impose any special burden on Star of India … . …

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The Enerco defendants asserted that their 2½-year delay in moving for leave to amend their answer was due to the fact that they were operating ‘under the incorrect assumption that they had asserted cross claims against every co-defendant.’ This proffered excuse, however, is belied by the affidavit of Amy Weissman, an attorney for one of the codefendants. The Weissman affidavit makes clear that the Enerco defendants induced the other defense attorneys in the second action not to ask questions at the deposition of the Enerco defendants’ witnesses based on the explicit representation by counsel for the Enerco defendants that they had no cross claims against those codefendants. Thus, we view the proffered excuse to be disingenuous.

… These defendants have relied upon the Enerco defendants’ representation to their prejudice by forgoing questioning of the Enerco defendants’ witnesses, and they have been hindered in the preparation of their case … . Palmatier v Mr. Heater Corp., 2017 NY Slip Op 08918, Third Dept 12-21-17

 

CIVIL PROCEDURE (DISCOVERY, MOTION TO AMEND ANSWER, DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/DISCOVERY (DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ANSWER (MOTION TO AMEND,  DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT))/ATTORNEYS (DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS PRECLUDED AMENDMENT OF ANSWER (THIRD DEPT))

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DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, ON APPEAL PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Garden Homes did not demonstrate it had acquired a prescriptive easement over plaintiffs’ (the Patels’) land such that effluent and storm water could be discharged onto plaintiffs’ property. The court further found plaintiffs’ trespass action was proven and sent the matter back for trial on damages:

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” The essence of trespass is the invasion of a person’s interest in the exclusive possession of land'” … . “Accordingly, an action for trespass over the lands of one property owner may not be maintained where the purported trespasser has acquired an easement of way over the land in question'” … .

An easement by prescription may be demonstrated by clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period … , which is 10 years … . ” [T]he right acquired by prescription is commensurate with the right enjoyed'” … .

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Here, Garden Homes could acquire a prescriptive easement for the encroachment of components of its sewage treatment system and the drainage of effluent and storm water only equal in area to that portion of the property actually used during the prescriptive period … . However, the Supreme Court’s determination, made after the nonjury trial, that Garden Homes established by clear and convincing evidence the continuous use of a particular portion of the Patels’ property during the prescriptive period was not warranted by the facts. Accordingly, the court should not have found that Garden Homes had a prescriptive easement over a portion of the Patels’ property … .. Moreover, as the Patels established a continuing trespass … , the complaint in Action No. 1 must be reinstated, the Patels must be awarded judgment against the defendants in Action No. 1 on the issue of liability, and the matter must be remitted … for a continued trial in that action on the issues of damages and injunctive relief, and the entry thereafter of an appropriate amended judgment. Patel v Garden Homes Mgt. Corp., 2017 NY Slip Op 08839, Second Dept 12-20-17

 

REAL PROPERTY (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/EASEMENTS  (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/PRESCRIPTIVE EASEMENT (DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/TRESPASS (DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/STORM WATER  (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/EFFLUENT  (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))

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DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-sellers, in the context of a motion to dismiss the complaint, were not entitled to keep the down payment based upon plaintiffs’ failure to attend the closing pursuant to a time of the essence demand. Defendants did not demonstrate they were able to close because there were outstanding liens on the property. In addition, there was a question whether defendants had a duty to speak when plaintiffs requested an adjournment of the closing, an issue that cannot be resolved in a motion to dismiss:

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Here, the mortgage indebtedness on the subject property amounted to $11,265,000, nearly three times the portion of the purchase price due at the closing. The defendants only satisfied $8,850,000 of that indebtedness in October 2014, about six months after the law day. Further, in order to close, the defendants were required to clear other liens of up to $25,000, and deliver their corporation formation documents to the title company, which allegedly was not done.

On the question of specific performance, a purchaser seeking specific performance of a real estate contract must demonstrate that he or she was ready, willing, and able to perform on the contract, regardless of any anticipatory breach by the seller … . An anticipatory breach of the contract excuses the purchaser from tendering performance, but does not excuse the purchaser from the requirement that it be ready, willing, and able to perform … .

The defendants were not required to consent to the adjournment of a time-of-the-essence closing … . However, the question here is whether the defendants had any obligation to respond. A duty to speak arises where there is a duty of fair dealing between the parties pursuant to a contractual relationship, and failure to speak is inconsistent with “honest dealings” and misleads another… .. Such a duty may be created by a course of conduct … . Here, the plaintiff was a tenant of the defendants; therefore, there was a prior course of conduct not explored on this record, as well as opportunities to speak and actual communication between the parties with respect to this transaction one day prior to the law day. 533 Park Ave. Realty, LLC v Park Ave. Bldg. & Roofing Supplies, LLC, 2017 NY Slip Op 08802, Second Dept 12-20-17

 

REAL ESTATE (TIME OF THE ESSENCE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/CONTRACT LAW (REAL ESTATE, TIME OF THE ESSENCE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/TIME OF THE ESSENCE (REAL ESTATE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/DUTY TO SPEAK (REAL ESTATE, TIME OF THE ESSENCE, REQUEST FOR ADJOURNMENT, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/SPECIFIC PERFORMANCE (REAL ESTATE, TIME OF THE ESSENCE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT)

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