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DISQUALIFICATION OF ATTORNEY APPROPRIATE TO AVOID THE APPEARANCE OF IMPROPRIETY.

In a dispute about easements used by property owners to gain access to their properties, the Third Department determined disqualification of an attorney based upon avoiding the appearance of impropriety was appropriate, even though the mandatory conflict-of-interest disqualification criteria may not have been met:

… [E]ven in instances where … disqualification is not mandatory, disqualification nonetheless may be warranted depending upon the particular facts and circumstances of a given case … . In this regard, “[i]t is well settled that an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” … . To that end, “[a]n attorney may not place himself [or herself] in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” … . “The disqualification of an attorney is a matter that rests within the sound discretion of the court” … , and the case law makes clear that “[a]ny doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety”… . McCutchen v 3 Princesses & AP Trust Dated Feb. 3, 2004, 2016 NY Slip Op 02703, 3rd Dept 4-7-16


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HIGHWAY LAW ALLOWING AN UNUSED PUBLIC EASEMENT TO BE DECLARED ABANDONED DOES NOT APPLY WHERE THE MUNICIPALITY OWNS A FEE INTEREST IN THE ROADBED.

The Second Department determined plaintiff's action to have property used by plaintiff as a parking lot declared an abandoned highway was properly dismissed for failure to state a cause of action. The roadbed had been paved and used as a parking lot by plaintiff. Plaintiff alleged the roadway had not been used for at least 15 years. However, Highway Law 205(1), which allows a public easement to be declared abandoned, does not apply where the municipality owns a fee interest in the road, which was the case here:

In 1942, “all right, title and interest” in Bishop Road was dedicated to the Town “for highway purposes.” … The plaintiff alleged that when it acquired the property abutting Bishop Road in 1998, Bishop Road was “an unpaved dirt pathway” that led to “nowhere,” and that it paved the length of Bishop Road, painted stripes for parking stalls to provide spaces for its customers, and erected a six-foot fence, enclosing the full width of the roadbed. The plaintiff asserted that, with the exception of vehicles that cross over a small portion of Bishop Road to enter a separate lot, there had been no regular vehicular or pedestrian traffic along Bishop Road for at least 15 years. * * *

… Highway Law § 205(1) “sets forth a six-year limitation on the life of an unused public easement” … . It does not apply where a town has acquired a fee to the land in question … . Here, the plaintiff does not dispute that the Town owns a fee interest in Bishop Road. Accordingly, Bishop Road cannot be deemed abandoned under Highway Law § 205, even if it has not “been traveled or used as a highway for six years” (Highway Law § 205[1]…). No-Dent Props., Inc. v Commissioner of Town of Hempstead Dept. of Hwys., 2016 NY Slip Op 02625, 2nd Dept 4-6-16


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DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITIONS JUSTIFIED REVOCATION OF PISTOL PERMIT.

The Second Department determined County Court properly revoked petitioner’s pistol permit based upon evidence of deplorable living conditions, deteriorating mental health, and petitioner’s inability to care for himself:

“The State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument” … . Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be of good moral character with no prior convictions of a felony or serious offense, and a person “concerning whom no good cause exists for the denial of the license” (Penal Law § 400.00[1][n]…). ” Where a licensee challenges a determination, made after a hearing, to revoke his or her pistol license,’ or to deny reinstatement of a permit previously revoked, we review only whether a rational basis exists for the licensing authority’s determination, or whether the determination is arbitrary or capricious'” … .

Here, at the hearing, testimony was elicited regarding the petitioner’s deplorable living conditions, the deteriorating state of his mental health, and his inability to properly care for himself, his environment, or his possessions. Contrary to the petitioner’s contention, this evidence, which was credited by the respondent, was sufficient to provide a rational basis for the determination revoking his pistol license.  Matter of Warmouth v Zuckerman, 2016 NY Slip Op 02659, 2nd Dept 4-6-16

PISTOL PERMITS (DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)/MENTAL HYGIENE LAW (PISTOL PERMITS, DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)

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BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF.

The Second Department determined the city, the property owner, the listing broker, the listing agent and the snow removal contractor owed no duty of care to plaintiff who slipped and fell on a sidewalk the day after snowfall and before anyone shoveled or treated the sidewalk. The city was not notified of the condition and did not create the condition. The property owner was not under a statutory duty to remove the snow. The listing broker, the listing agent and the snow removal contractor did not create the dangerous condition:

The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the snow and ice condition which caused the plaintiff’s accident, as required by section 24-11 of the Charter of the City of Yonkers … . In opposition, the plaintiff failed to raise a triable issue of fact as to any exception to the prior written notice requirement, namely, whether the City affirmatively created the alleged defect, or whether the defect was created by the City’s special use of the property … . The City’s alleged failure to remove the snow and ice from the sidewalk, or to warn of a dangerous condition, were acts of omission, and not affirmative acts of negligence … .  * * *

Absent a statute or ordinance which clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk … . However, the owner of property abutting a public sidewalk will be held liable where it, or someone on its behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous … . Here, although section 103-8 of the City Charter places the duty to keep sidewalks clear from snow and ice on the abutting landowner, the Charter does not expressly make the landowner liable for failure to perform that duty … . * * *

The Court of Appeals has identified three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort, to third persons: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . Any duty [the listing broker, agent and snow removal contractor] had with respect to the plaintiff arose exclusively out of the contracts each of them had with [the property owner]… . [The property owner] owed no statutory or common-law duty to the plaintiff because there was no statute which imposed liability upon it for the negligent failure to remove snow and ice from a public sidewalk, and neither [the property owner], nor anyone else on its behalf, undertook any snow removal efforts that made the conditions on the public sidewalk more hazardous. Rodriguez v County of Westchester, 2016 NY Slip Op 02635, 2nd Dept 4-6-16

NEGLIGENCE (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)/MUNICIPAL LAW (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)/SLIP AND FALL (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)

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FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST.

The Second Department noted that the loss at issue, the collapse of a retaining wall caused by run-off water, was the subject of a policy exclusion, an issue about which there was no dispute. Plaintiff argued the insurer’s disclaimer letter was ineffective because it did not identify the precise ground upon which the disclaimer was ultimately based. The Second Department, applying common law waiver and estoppel principles, rejected the argument because the failure to disclaim based upon an exclusion will not give rise to coverage which does not exist:

… [T]he defendants’ failure to specifically identify the flood and surface water exclusions in its disclaimer letter must be considered under common-law waiver and/or estoppel principles … .

Waiver, which is a voluntary and intentional relinquishment of a known right, does not apply here because “the failure to disclaim based on an exclusion will not give rise to coverage that does not exist” … . Under the principles of estoppel, an insurer, though in fact not obligated to provide coverage, may be precluded from denying coverage upon proof that the insurer “by its conduct, otherwise lulled [the insured] into sleeping on its rights under the insurance contract” … . Estoppel requires proof that the insured has suffered prejudice by virtue of the insurer’s conduct … . Because the plaintiff failed to make the requisite showing of prejudice, there was no basis to estop the defendants from relying on policy exclusions not detailed in their letter disclaiming coverage. Provencal, LLC v Tower Ins. Co. of N.Y., 2016 NY Slip Op 02644, 2nd Dept 4-6-16

INSURANCE LAW (FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)/DISCLAIMER (INSURANCE LAW, FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)EXCLUSIONS FROM INSURANCE COVERAGE (FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)

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THE FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO A MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS.

The Second Department, modifying Supreme Court’s order, determined defendant was not entitled to summary judgment in a foreclosure proceeding. Defendant alleged plaintiff, Aurora Loan Services, did not have standing to bring the action (i.e., did not have possession of the note at the time the action was commenced). Aurora Loan Services was unable to demonstrate standing because the evidence submitted did not meet the requirements of the business records exception to the hearsay rule. Aurora’s summary judgment motion was therefore properly denied. However, the flaws in Aurora’s proof of standing did not entitle defendant to summary judgment on defendant’s cross motion. In the summary judgment context, the court first looks only at the moving party’s papers to determine whether the moving party has made a prima facie showing justifying summary judgment. Here the defendant’s papers did not demonstrate Aurora lacked standing. Therefore the cross motion should have been denied, notwithstanding the flaws in the plaintiff’s opposing papers.

… Supreme Court erred in granting the defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him for lack of standing and to cancel the notice of pendency filed against the subject property. “[T]he burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, the defendant, as the moving party, failed to make a prima facie showing that the plaintiff lacked standing … . Aurora Loan Servs., LLC v Mercius, 2016 NY Slip Op 02599, 2nd Dept 4-6-16

FORECLOSURE FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/EVIDENCE (SUMMARY JUDGMENT MOTIONS, FORECLOSURE, FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/SUMMARY JUDGMENT MOTIONS (SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)/CIVIL PROCEDURE (SUMMARY JUDGMENT MOTIONS, FORECLOSURE, FLAWS IN PLAINTIFF’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE CROSS MOTION; SUMMARY JUDGMENT CANNOT BE GRANTED TO THE MOVING PARTY BASED UPON FLAWS IN THE OPPOSING PAPERS)

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SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY.

The Second Department, in a full-fledged opinion by Justice Roman, affirming Family Court, determined one of the parties to a California same-sex marriage, Kelly S., had standing to seek visitation with the couple’s children, now in New York with the birth mother, Farah M., notwithstanding the parties’ failure to comply with California’s artificial insemination law. The two children named in the visitation proceedings were conceived by artificial insemination performed in the home by the mother, Farah M. All three of the couple’s children were fathered by the same sperm donor, a friend who maintained a relationship with the children. The Second Department held that Kelly S., who moved to Arizona after the couple separated, under principles of comity, had standing to bring an action for visitation in New York:

Here, the parties first entered into a registered domestic partnership in California in 2004, prior to the birth of Z.S., and thus, Kelly S. was the presumed parent of Z.S. by virtue of the parties’ status as registered domestic partners (see Cal Fam Code §§ 297.5[d]; 7611[a]). Moreover, Kelly S. gave her consent to be named as a parent on the birth certificate of Z.S., and the parties were later married in California in August 2008, making Kelly S. the presumed parent of Z.S. pursuant to California Family Code § 7611(c)(1). After the parties’ marriage, the child E.S. was born. Thus, Kelly S. is presumed to be the natural parent of E.S. by virtue of the parties’ marriage pursuant to California Family Code § 7611(a). Furthermore, the Family Court, as a matter of comity, properly recognized Kelly S. as the parent of the subject children under New York law … . Matter of S. v Farah M., 2016 NY Slip Op 02676, 2nd Dept 4-6-16

FAMILY LAW (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)/SAME-SEX MARRIAGE (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)/COMITY (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)/VISITATION  (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)

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E-MAILS CONSTITUTED NONACTIONABLE OPINION AND POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE.

The Second Department, reversing Supreme Court, determined the defendant residential cooperative members and board were entitled to summary judgment in this defamation action. E-mails concerning plaintiff’s behavior and performance on the board were nonactionable expressions of opinion. A flyer indicating which shareholders were alleged to be in arrears was protected by the “common interest” qualified privilege:

“Expressions of an opinion, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions'” … . “The issue of distinguishing between actionable fact and non-actionable opinion is a question of law for the court” … . Here, the statements contained in the two emails alleged to be defamatory amounted to subjective characterizations of the plaintiff’s behavior and an evaluation of her performance as a member of the Board, and thus constituted non-actionable expressions of opinion … . Accordingly, the email statements cannot serve as a basis for the imposition of liability.

The defendants further demonstrated that the challenged statements set forth in the “Shareholders In Arrears” flyers posted in the building lobby, which listed the apartment numbers of shareholders who allegedly owed arrears and the amount of those arrears, were protected by the qualified common-interest privilege … . Although a qualified privilege may be lost by proof that the defendant acted out of malice …, in opposition to the defendants’ motion, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements in the flyers were motivated solely by malice … . Galanova v Safir, 2016 NY Slip Op 02617, 2nd Dept 4-6-16

DEFAMATION (E-MAILS CONSTITUTED NONACTIONABLE OPINION AND POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)/PRIVILEGE (DEFAMATION, POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)/COMMON INTEREST PRIVILEGE (DEFAMATION, POSTED FLYERS PROTECTED BY COMMON INTEREST PRIVILEGE)

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ACKNOWLEDGING DEBT IN BANKRUPTCY PLAN RENEWED THE STATUTE OF LIMITATIONS WHICH STARTED TO RUN UPON GRANT OF DISCHARGE IN BANKRUPTCY.

The Second Department determined the statute of limitations re: a default on a note secured by a mortgage was renewed when defendant (Raudkivi) acknowledged the debt in his bankruptcy plan. The statute therefore began to run when defendant was granted a discharge in bankruptcy, which occurred less than six years before suit was brought:

Raudkivi’s Chapter 13 bankruptcy plan, in which he acknowledged the mortgage debt and promised to repay it, renewed the limitations period (see General Obligations Law § 17-105[1]…). The automatic bankruptcy stay, which was in effect when Raudkivi executed his Chapter 13 bankruptcy plan, tolled the renewed limitations period (see CPLR 204[a]…), so the renewed limitations period did not begin to run until Raudkivi was granted his discharge in bankruptcy in October of 2006 (see 11 USC § 362[c][2][C]). Since this action was commenced less than six years later, in July of 2012, this action is not time-barred. PSP-NC, LLC v Raudkivi, 2016 NY Slip Op 02632, 2nd Dept 4-6-16

DEBTOR-CREDITOR (ACKNOWLEDGING DEBT IN BANKRUPTCY PLAN RENEWED THE STATUTE OF LIMITATIONS WHICH STARTED TO RUN UPON GRANT OF DISCHARGE IN BANKRUPTCY)/BANKRUPTCY (ACKNOWLEDGING DEBT IN BANKRUPTCY PLAN RENEWED THE STATUTE OF LIMITATIONS WHICH STARTED TO RUN UPON GRANT OF DISCHARGE IN BANKRUPTCY)/CIVIL PROCEDURE (ACKNOWLEDGING DEBT IN BANKRUPTCY PLAN RENEWED THE STATUTE OF LIMITATIONS WHICH STARTED TO RUN UPON GRANT OF DISCHARGE IN BANKRUPTCY)

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DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER.

Although deemed harmless error in this drug conspiracy prosecution, the Second Department determined a detective should not have been allowed to testify (as an expert) about the alleged roles played by people overheard in recorded phone calls:

It was proper to permit the detective to describe certain practices and define certain terms that have a “fixed meaning . . . within the narcotics world” … . However, it was error to permit the prosecutor to elicit testimony as to the roles played by the individuals overheard in the phone calls, and the relationships among them, for example, that several were “runners or workers” for the defendant or codefendant, and the meanings of certain “case-specific” terms that he had discovered in the course of the investigation. As the Court of Appeals cautioned in People v Inoa, where, as here, “the trial court qualifie[s] a government agent, intimately involved in the investigation of the case and development of the prosecution, to testify as an expert,” there is a danger that the agent will end up “testifying beyond any cognizable field of expertise as an apparently omniscient expositor of the facts of the case” (id. at 473), thereby usurping the role of the jury. Also improper was the testimony, elicited by the prosecutor from members of the surveillance teams who observed the defendant and his associates at the locations described in the phone calls, that what they witnessed was consistent with a drug transaction … . Nevertheless, we find that the improperly admitted testimony was harmless, as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is “no significant probability that, but for the error, the verdict . . . would have been less adverse” … . People v Melendez, 2016 NY Slip Op 02667, 2nd Dept 4-6-16

CRIMINAL LAW DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EVIDENCE (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)/EXPERT OPINION (CRIMINAL LAW, DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT THE ROLES PLAYED BY THE PEOPLE OVERHEARD IN RECORDED PHONE CALLS IN THIS DRUG CONSPIRACY CASE, ERROR DEEMED HARMLESS HOWEVER)

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