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Police Officer’s Draping Defendant’s Striped Shirt Over Defendant’s Chest During a Show-Up Identification Was Tantamount to Pointing Out the Defendant as the Perpetrator—Victim Had Told the Police the Perpetrator Was Wearing a Striped Shirt

The Second Department, over a dissent, determined the show-up identification procedure was unduly suggestive, requiring suppression of the identification testimony and a new trial. The defendant did not match the description of a person who had just robbed the victim at knife-point. However, the victim said the robber was wearing a brown and white striped shirt.  When a police officer spotted the defendant, he was shirtless but was carrying a red and white striped shirt. The victim was driven to where the defendant was being held, but she was only able to identify the defendant as the robber after an officer draped the striped shirt over his chest:

Here, the active police involvement in the identification process—the police officers’ draping of the shirt over the defendant’s chest immediately after the complainant had hesitated in identifying the shirtless defendant as the perpetrator and before she did identify him—renders this showup identification procedure unduly suggestive … . The actions taken by the police officers suggested to the complainant that the defendant was the perpetrator. Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him. This action by the police is akin to the police having pointed out the defendant as the perpetrator … . People v James, 2015 NY Slip Op 03864, 2nd Dept 5-6-15

 

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Divorce and Right to Equitable Distribution Did Not Abate Upon Husband’s Death

The Second Department determined the divorce action and the right to equitable distribution did not abate upon the husband’s death. The final adjudication of divorce had been made before the husband’s death and death did not abate a vested right to equitable distribution:

Contrary to the contention of the executor of the husband’s estate, the actions did not abate upon the death of the husband. The Supreme Court had made the final adjudication of divorce before the husband’s death, but had not performed the ” mere ministerial act of entering the final judgment'” … . Moreover, a cause of action for equitable distribution does not abate upon the death of a spouse … . ” Consequently, if a party dies in possession of a vested right to equitable distribution, and that right has been asserted during the party’s lifetime in an action in a court of this State, that right survives the party’s death and may be asserted by the estate'” … .  Charasz v Rozenblum, 2015 NY Slip Op 03798, 2nd Dept 5-6-15

 

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There Must Be a Determination of Paternity Before Making an Abandonment Finding

The Second Department, in a full-fledged opinion by Justice Dillon, determined Family Court should have granted appellant’s request for DNA testing before finding that appellant had abandoned the child (thereby freeing the child for adoption).  Appellant did not know whether he was the father of the child and there was no evidence of his paternity.  Appellant feared the abandonment finding would negatively affect his relationship with his four children. The Second Department held the abandonment finding could not be made unless appellant is the father, so whether appellant is the father must be determined first:

We are asked to address whether a Family Court may render a determination that a putative father has abandoned a child so as to free the child for adoption, if there is not first a threshold finding that the putative father is, in fact, the father of the child. For the reasons set forth below, we conclude that where paternity is not ascertained in fact or by law, the Family Court may not conclusorily find that a respondent is not a “consent father,” or that his consent, while otherwise required, has been forfeited by reason of his abandonment of the child. Matter of Heaven A. A. (Tyrone W.–Stephanie A.), 2015 NY Slip Op 03833, 2nd Dept 5-6-15

 

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Nothing in the Documentation Submitted to the Lender Raised Any Questions About the Applicant’s Authority, as the Sole Member, to Enter the Mortgage on Behalf of Defendant Limited Liability Company—Therefore the Affirmative Defense Alleging the Mortgage Was Invalid Because there Were Undisclosed Members of the Limited Liability Company Was Properly Dismissed

In an action to foreclose a mortgage, the Second Department determined the defendants’ affirmative defense claiming the mortgage was invalid was properly dismissed. The defendants alleged the member of defendant limited liability company who applied for the mortgage, Botticelli, did not have the authority to enter the mortgage on behalf of the limited liability company because he was not the sole member. However, there was nothing in the documents submitted to the lender by Botticelli which raised questions about the existence of undisclosed members. Therefore the mortgagee was not under any obligation to make inquiries to ensure Botticelli had the proper authority and the mortgagee was a bona fide encumbrancer:

The operating agreement of the defendant Jericho Plaza, LLC (hereinafter the LLC), which was formed to build and sell new homes, provided that Silvia Cerrone held a 50% interest, that her son-in-law Giuliano Botticelli held a 25% interest, and that his father, Anthony Botticelli, held a 25% interest in the LLC. The LLC obtained a $600,000 loan, secured by a mortgage on the only property it owned. At the closing, Giuliano Botticelli presented documents indicating that he was the sole member of the LLC, and was authorized to execute the mortgage on its behalf. Thereafter, the plaintiffs commenced this foreclosure action against the LLC and others. Silvia Cerrone successfully moved to intervene. The LLC and Silvia Cerrone (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them, contending that the mortgage was invalid by reason of Cerrone’s undisclosed interest in the LLC, and the plaintiffs cross-moved for summary judgment dismissing the defendants’ affirmative defenses which were based upon the alleged invalidity of the mortgage.

A mortgagee is not a bona fide encumbrancer where, despite being aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue, it fails to make such inquiries … . However, mortgagees “do not have a duty of care to ascertain the validity of the documentation presented by an individual who claims to have the authority to act on behalf of a borrower corporation or entity” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defenses which were based upon the alleged invalidity of the mortgage, by submitting evidence demonstrating that Giuliano Botticelli submitted documents at the closing which indicated that he was the sole member of the LLC, and had the authority to enter into the mortgage on its behalf. Moreover, the plaintiffs established, prima facie, that the circumstances presented would not lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue. 334 Corp. v Jericho Plaza, LLC,2015 NY Slip Op 03827, 2nd Dept 5-6-15

 

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Doctor Who Allegedly Wrongfully Prescribed Narcotics for a Drug Addict Who Shot Plaintiff’s Decedent in an Attempt to Steal Narcotics from a Pharmacy Did Not Owe a Duty of Care to Plaintiff’s Decedent

The Second Department determined the duty to protect persons from the criminal acts of others did not extend to plaintiff’s decedent.  Plaintiff sued a doctor who operated a pain management clinic, alleging that the doctor operated a “pill mill” and wrongfully provided drugs to a drug addict,  The drug addict shot plaintiff’s decedent during a robbery of a drug store in an attempt to steal narcotics. The court noted that there are situations in which a defendant exercises sufficient control to prevent harm to others. Here, however, in the absence of such control, the doctor owed no duty of care to plaintiff’s decedent:

“The question of whether a defendant owes a duty of care to another person is a question of law for the courts” … .

Generally, “[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm” … . Further, “there is no duty to control the conduct of third persons to prevent them from causing injury to others,’ even where, as a practical matter, the defendant could have exercised such control” … .

… Courts have imposed a duty of care “where there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons” that courts have identified a duty to exercise such control … . Thus, courts have imposed a duty to control the conduct of others “where there is a special relationship: a relationship between [the] defendant and [the] third person whose actions expose [the] plaintiff to harm such as would require [the] defendant to protect the plaintiff from the conduct of others” … .

The Supreme Court erred in denying [the doctor’s] motion to dismiss the complaint insofar as asserted against him for failure to state a cause of action. [The doctor] did not owe a duty to the decedent or to the general public because no special circumstances existed. The decedent was a stranger to [the shooter] and a member of the general public, not a member of “a determinate and identified class” … . Malone v County of Suffolk, 2015 NY Slip Op 03811, 2nd Dept 5-6-15

 

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Bar Patron Was Beaten to Death by Other Patrons—Defendants (Bar and Premises Owners) Were Unable to Demonstrate the Attack Was Not Foreseeable and their Negligence Was Not the Proximate Cause of the Attack—Defendants’ Summary Judgment Motion Properly Denied

The Second Department determined there were questions of fact whether a bar patron could have been protected from harm.  “The plaintiff’s decedent was assaulted by other patrons of a lounge on premises leased by the defendant Bartini’s Pierre, Inc., also known as Station Bar Corp., doing business as Bartini’s Lounge, and owned by the defendant Reiner & Keiser Associates (hereinafter together the appellants).” The appellants were not able to demonstrate prima facie that the attack was not foreseeable, that the attack could not have been prevented, that the appellants’ negligence was not the proximate cause of the attack, or that reasonable security measures to guard against criminal acts by third persons were taken:

  “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … .

Here, the appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them. In support of their motion, the appellants submitted the deposition testimony of a witness to the incident, who testified that, shortly before the incident, he noticed the decedent being restrained by a security guard, but was not aware of the events which led the security guard to restrain the decedent. The witness testified that the security guard then proceeded to escort the decedent out of the premises, during the course of which the decedent was severely beaten by other patrons, resulting in his death. This evidence failed to demonstrate, prima facie, that the attack upon the decedent was not foreseeable, that the appellants lacked the opportunity to prevent the attack, or that any negligence on the appellants’ part was not a proximate cause of the incident … . The appellants also failed to demonstrate, prima facie, that they took reasonable security measures against foreseeable criminal acts of third parties … . Walfall v Bartini’s Pierre, Inc., 2015 NY Slip Op 03830, 2nd Dept 5-6-15

 

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Transit Authority Not Liable Under the Emergency Doctrine As a Matter of Law

The Second Department determined the defendant New York City Transit Authority was not liable to the plaintiff as a matter of law under the emergency doctrine.  Plaintiff was a passenger in the Transit Authority’s vehicle when defendant Franco allegedly backed out of a driveway at a high rate of speed (to get over a snow bank) into the path of the Transit Authority’s vehicle. “The common-law emergency doctrine ‘recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency’  … . ‘Although the existence of an emergency and the reasonableness of the response to it generally present questions of fact, those issues may in appropriate circumstances be determined as a matter of law”…”. Majid v New York City Tr. Auth., 2015 NY Slip Op 03809, 2nd Dept 5-6-15

 

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Question of Fact Whether County Had Constructive Notice of Pothole Which Injured Bicyclist

The Second Department determined a question of fact had been raised about whether the county had constructive notice of a pothole. Plaintiff was injured when his bicycle struck the pothole. Although the county did not have written notice of the defect, the Highway Law (section 139[2]) provides that a county may be liable for a defective highway condition if the county has constructive notice of it. Plaintiff’s expert opined the pothole had existed for four months prior to the accident:

Notwithstanding the existence of a prior written notice statute, a County may be liable for an accident caused by a defective highway condition where the County has constructive notice of the condition (see Highway Law § 139[2]…). Here, the County submitted the deposition testimony of a County employee who stated that he inspected the roadway where the fall is alleged to have occurred every Monday through Friday until the week before the accident, and did not observe any potholes. This was sufficient to establish, prima facie, that the County lacked constructive notice of the alleged defect … . However, in opposition to the County’s motion, the plaintiff submitted the affidavit of an expert who inspected the subject roadway and opined that the defect was in existence for at least four months prior to the accident. This affidavit was sufficient to raise a triable issue of fact as to whether the County had constructive notice of the alleged defect by virtue of the fact that it existed for so long a period that it should have been discovered and remedied in the exercise of reasonable care and diligence … . Rauschenbach v County of Nassau, 2015 NY Slip Op 03818, 2nd Dept 5-6-15

 

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Court’s Arbitration-Award Review Powers Explained

The Second Department determined the petition to vacate the arbitration award was properly denied. The court explained its review powers:

“Judicial review of an arbitrator’s award is extremely limited” … . “A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden,’ and must establish a ground for vacatur by clear and convincing evidence” … . An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) an arbitrator who exceeded his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511[b]). An arbitration award may be vacated pursuant to CPLR 7511(b)(1)(iii) where “an arbitrator . . . exceeded his or her power,” which includes those circumstances in which the award “violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … .

The petitioner’s contention that the arbitration award dated August 14, 2012, was against public policy is without merit. “An arbitration award violates public policy only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state” … . Matter of County of Nassau v Patalano, 2015 NY Slip Op 03837, 2nd Dept 5-6-15

 

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Owner of Land through Which Power Lines Pass Pursuant to a Utility Easement (Servient Owner) Does Not Have a Duty to Maintain the Easement—Servient Owner Not Liable for Damage to Abutting Property Stemming from a Vegetation Fire Started by Sparks from the Power Lines

The Second Department determined the easement which allowed the power company’s lines to pass through the owner’s property did not impose a duty to maintain the easement on property owner.  Vegetation around the power lines caught fire causing damage to an abutting landowner’s property. The plaintiff insurer paid the claim and sued the owner of the land through which the power lines passed (the servient owner). The Second Department explained that “a servient owner has no duty to maintain an easement to which its property is subject. Indeed, a servient owner has a passive duty to refrain from interfering with the rights of the dominant owner” … .  Encompass Ins. Co. of Am. v Long Is. Power Auth., 2015 NY Slip Op 03800, 2nd Dept 5-6-15

 

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