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ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT.

The Fourth Department determined one fine, not two, should have been imposed on two convictions arising from the same act:

We agree with defendant, however, that the fines are illegal to the extent the court imposed a fine on both a conviction for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree that arose from a single act … . People v Regatuso, 2016 NY Slip Op 04836, 4th Dept 6-17-16

CRIMINAL LAW (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)/SENTENCING (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)/FINES (CRIMINAL LAW, (ONLY ONE FINE SHOULD HAVE BEEN IMPOSED WHERE TWO CONVICTIONS AROSE FROM THE SAME ACT)

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DEED PROVIDED AS SECURITY FOR A DEBT CONSTITUTES A MORTGAGE TRIGGERING THE NEED FOR FORECLOSURE PROCEEDINGS UPON DEFAULT.

The First Department determined a deed which was security for a debt constituted a mortgage. Therefore, foreclosure proceedings under the Real Property Law were triggered by default on the debt:

Real Property Law § 320 codifies the common-law principle that the giving of a deed to secure a debt, in whatever form and however structured, creates nothing more than a mortgage … . “The courts are steadfast in holding that a conveyance, whatever its form, if in fact given to secure a debt, is neither an absolute nor a conditional sale, but a mortgage, and that the grantor and grantee have merely the rights and are subject only to the obligations of mortgagor and mortgagee” … . “Significantly, the statute does not require a conclusive showing that the transfer was intended as security; it is sufficient that the conveyance appears to be intended only as a security in the nature of a mortgage” … . “In determining whether a deed was intended as security, examination may be made not only of the deed and a written agreement executed at the same time, but also of oral testimony bearing on the intent of the parties and to a consideration of the surrounding circumstances and acts of the parties” … . Patmos Fifth Real Estate Inc. v Mazl Bldg., LLC, 2016 NY Slip Op 04804, 1st Dept 6-16-16

REAL PROPERTY LAW (DEED PROVIDED AS SECURITY FOR A DEBT CONSTITUTES A MORTGAGE TRIGGERING THE NEED FOR FORECLOSURE PROCEEDINGS UPON DEFAULT)/FORECLOSURE (DEED PROVIDED AS SECURITY FOR A DEBT CONSTITUTES A MORTGAGE TRIGGERING THE NEED FOR FORECLOSURE PROCEEDINGS UPON DEFAULT)/DEEDS (DEED PROVIDED AS SECURITY FOR A DEBT CONSTITUTES A MORTGAGE TRIGGERING THE NEED FOR FORECLOSURE PROCEEDINGS UPON DEFAULT)/MORTGAGES (DEED PROVIDED AS SECURITY FOR A DEBT CONSTITUTES A MORTGAGE TRIGGERING THE NEED FOR FORECLOSURE PROCEEDINGS UPON DEFAULT)

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IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT.

The Third Department determined the notice of claim, although “bare bones,” was sufficient under the circumstances because defendant Office of Mental Retardation and Developmental Disabilities (OMRDD) had conducted an investigation into the fire at a residential care facility with caused the death of claimant’s decedent:

Court of Claims Act § 11 (b) “places five specific substantive conditions upon [defendant’s] waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed” … . The guiding principle and “purpose of the notice of claim requirement [is] to allow [defendant] to investigate the claim and to estimate its potential liability” … . “‘Absolute exactness'” is not required …, but the claim must enable prompt investigation and be “sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability” … . Moreover, defendant is not required “to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . * * *

Where an agency of defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which a claim is based, it cannot be readily found that a lack of specificity has interfered with defendant’s ability to investigate a claim … , nor that defendant has been improperly required to “assemble” information regarding a claim … . Davila v State of New York, 2016 NY Slip Op 04752, 3rd Dept 6-16-16

 

NEGLIGENCE (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/COURT OF CLAIMS (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)/NOTICE OF CLAIM (IN LIGHT OF DEFENDANT’S INVESTIGATION INTO THE FIRE WHICH CAUSED CLAIMANT’S DECEDENT’S DEATH, THE NOTICE OF CLAIM WAS SUFFICIENT)

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PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE.

The Third Department determined defendant was not provided effective assistance of counsel. Defense counsel permitted lengthy, unresponsive answers from the People’s witnesses and failed to address in any way the People’s failure to present the confidential informant (CI) as a witness in this “buy and bust” case:

 

Although defense counsel lodged some successful objections at trial, he largely permitted the People’s police witnesses to provide lengthy, nonresponsive answers to questions asked on both direct and cross-examination, even after County Court commented on his failure to object or request that the nonresponsive testimony be stricken from the record. …

Even more perplexing, however, was defense counsel’s absolute failure to address the absence of the CI, a pivotal player in the “buy and bust” operation. Initially, the record is devoid of any indication that defense counsel recognized the possibility of requesting a missing witness charge … . It is difficult to imagine any legitimate trial tactic for not requesting such a charge under the particular circumstances of this case … . People v Smith, 2016 NY Slip Op 04745, 3rd Dept 6-16-16

 

CRIMINAL LAW (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE

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CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED.

The Third Department, reversing County Court, determined plaintiff was not required to file a notice of claim because the action against the city sounded in contract, not tort. Plaintiff alleged the city violated an easement when work was done on plaintiff’s property:

General Municipal Law § 50-e (1) (a) provides that a party seeking to bring a tort action against a municipality must file a notice of claim within 90 days of the date that the claim arises … . A similar provision is contained in Charter of the City of Glens Falls § 10.14.5. The notice of claim provisions of General Municipal Law § 50-e, however, apply only to actions sounding in tort, not to those premised upon breach of contract … . The same is true of City of Glens Falls City Charter § 10.14.5, as its terms make clear. Here, plaintiff’s small claims action is premised upon defendant’s alleged failure to comply with the provisions of the easement agreement resulting in damage to his property in the amount of $5,000. Inasmuch as plaintiff’s action sounds in breach of contract, not tort, the notice of claim provisions of General Municipal Law § 50-e and Charter of the City of Glens Falls § 10.14.5 are inapplicable. Strauss v City of Glens Falls, 2016 NY Slip Op 04750, 3rd Dept 6-16-16

 

MUNICPAL LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/REAL PROPERTY (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/CONTRACT LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/EASEMENTS (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/NOTICE OF CLAIM (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)

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PHYSICIAN’S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM.

The Second Department determined the actions against two physicians tasked with reading plaintiff's spinal MRI should have been dismissed. There was unrefuted evidence the MRI's were read correctly and the doctors' duties did not extend beyond the interpretation of the MRI:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, both West and Davis established, prima facie, that they discharged their respective duties to the injured plaintiff in accordance with accepted practices. West's expert concluded that West's interpretation of the … MRI film was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, but instead opined that West should have ordered a diffusion MRI to look for evidence of the injured plaintiff's condition. However, as West correctly contends, he had no such duty to do so. West's role was to interpret the MRI film and document his findings. He did not assume a general duty of care to independently diagnose the injured plaintiff's medical condition … .

Similarly, the plaintiffs' argument that Davis had a duty to examine the injured plaintiff in person and to ensure that high-dose steroids were properly administered also is without merit. Davis's duty as a neurosurgical consultant was to determine whether neurosurgery was necessary. He determined that it was not. His expert stated that this conclusion was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, and did not argue that neurosurgery was necessary. Meade v Yland, 2016 NY Slip Op 04697, 2nd Dept 6-15-16

NEGLIGENCE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/MEDICAL MALPRACTICE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/DUTY OF CARE (PHYSICIANS, PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)

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COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY.

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for aiding and abetting the breach of a fiduciary duty. Plaintiff’s former partner left the partnership and joined defendant accounting firm, taking a client with him. Partners owe one another a fiduciary duty. The complaint alleged the defendant firm aided and abetted the former partner in breaching that duty. The court outlined the relevant law:

To recover damages for aiding and abetting a breach of fiduciary duty, a plaintiff must plead and prove that a fiduciary duty owed to the plaintiff was breached, that the defendant knowingly induced or participated in the breach, and that the plaintiff was damaged as a result of the breach … . Knowing participation in a breach of fiduciary duty occurs when the defendant provides substantial assistance to the primary violator … . ” Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur . . . . However, the mere inaction of an alleged aider or abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff'” … . Smallberg v Raich Ende Malter & Co., LLP, 2016 NY Slip Op 04704, 2nd Dept 6-15-16

 

PARTNERSHIP LAW (COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY)/FIDUCIARY DUTY (PARTNERSHIP LAW, COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY)

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PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT.

The Second Department determined plaintiff created an issue of fact in this rear-end collision case by submitting a police report indicating defendant driver slid on snow and ice. The court noted plaintiff waived any objection to the admissibility of the report by submitting it in support of plaintiff's motion for summary judgment:

In support of the motion, the plaintiff submitted, inter alia, a copy of the police accident report. The police accident report indicated that the defendant driver stated that snow and ice on the road caused him to hit the plaintiff's vehicle, which demonstrated the existence of a triable issue of fact as to whether the defendant driver had a nonnegligent explanation for his actions … . Since the plaintiff submitted the police report in support of his motion, he waived any objection to its admissibility … . Orcel v Haber, 2016 NY Slip Op 04700, 2nd Dept 6-15-16

NEGLIGENCE (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/EVIDENCE (POLICE REPORT, SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/SUMMARY JUDGMENT (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/CIVIL PROCEDURE (SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)

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OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant out-of-possession landlord did not demonstrate it did not cause the alleged radiator-defect which injured plaintiff. Therefore the landlord's motion for summary judgment was properly denied:

“[A]n out-of-possession landowner is generally not responsible for injuries that occur on its premises unless the landowner has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . However, ” liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect'” … .

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. Although the defendant demonstrated that it did not owe a duty to provide the plaintiff with a radiator cover …, the defendant failed to establish that it did not cause the radiator to become and remain in a defective, broken, and overheated condition. Gowen v Gabrielle Realty Holdings, LLC, 2016 NY Slip Op 04695, 2nd Dept 6-15-16

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)

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OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES.

The Second Department determined defendant out-of-possession landlord was entitled to summary judgment in this slip and fall case. Plaintiff, in a bar on leased premises, fell on a bathroom floor alleged to have been wet with cleaning solution and water:

“An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . Here, [the landlord] established, prima facie, that he was an out-of-possession landlord with no contractual obligation to maintain the premises, and that he neither endeavored to perform such maintenance nor owed any duty to the plaintiff by virtue of any statute upon which the plaintiff relies … . Mendoza v Manila Bar & Rest. Corp., 2016 NY Slip Op 04698, 2nd Dept 6-15-16

 

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)

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