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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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Records of Pedigree Information Which Was Linked to the Defendant and Was Supplied by the Person Who Purchased a Prepaid Cell Phone Properly Admitted as Circumstantial Evidence Defendant Purchased the Phone

The First Department determined “[a]uthenticated records showing that the person who purchased a particular prepaid cell phone, which was linked to the crime, supplied pedigree information linked to defendant were properly admitted as circumstantial evidence of defendant’s identity as the purchaser of the phone. In the context of the case, the pedigree information did not constitute assertions of fact, but circumstantial evidence that the declarant was, in all likelihood, defendant … . Rather than being factual, the pedigree information was analogous to a fingerprint left on a document, tending to show the true identity of its author … . Although the purchaser of the phone was not under a business duty to provide the pedigree information, that requirement of the business records exception to the hearsay rule did not apply, because the initial declaration was independently admissible … . The possibility that the phone could have been purchased by an unknown person who had somehow acquired defendant’s pedigree information goes to weight, not admissibility.” People v Patterson, 2015 NY Slip Op 03788, 1st Dept 5-5-15

 

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Lateral Shift of Heavy Equipment, Which Pinned Plaintiff Against a Column, Not Gravity-Related—Not Covered Under Labor Law 240 (1)

The First Department determined Supreme Court should have dismissed plaintiff’s Labor Law 240 (1) cause of action because plaintiff’s injury was not caused by a falling object. Plaintiff was moving an 8000 pound piece of equipment across a flat platform when the equipment shifted laterally and pinned plaintiff against a column. Because the accident did not flow from the application of the force of gravity, it was not covered under Labor Law 240 (1):

Plaintiff and his coworkers were moving a piece of an 8,000-pound piece of equipment across a flat platform. The ultimate goal was to place the equipment onto the forks of a forklift. Plaintiff testified that because two wheels broke off, the workers were pushing and pulling the equipment when it pinned him against a column on the side of the platform. Plaintiff testified that they did not lift the equipment into the air, and that it did not fall. Nor did he know what caused the equipment to shift laterally towards his side. Plaintiff’s testimony established that the piece of equipment that pinned him to the column was not a “falling object” and that he was not a “falling worker,” and the accident did not otherwise flow from the application of the force of gravity. Thus, he was not covered by Labor Law § 240(1) under the current case law … . Martinez v 342 Prop. LLC, 2015 NY Slip Op 03770, 1st Dept 5-5-15

 

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Supervision, Even If Inadequate, Could Not Have Prevented Injury Caused by the Sudden, Unanticipated Act of Another Student—Summary Judgment to Defendant Properly Granted

The First Department determined that plaintiff’s injury on the playground could not have been prevented by supervision. Therefore the alleged inadequate supervision was not a proximate cause of the injury. Plaintiff was injured when he hit a pole while running away from another student. The court noted that the board of education, not the city, is the proper party.  The city is a separate legal entity not responsible for the torts of the board:

As to the claim against the Board, it is well settled that

“[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another. A teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances … .

“Even if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained” … . ” Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'” … . Thus, “[a]n injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

Here, even assuming that plaintiff could demonstrate that the supervision during the gym class was inadequate, the Board established a prima facie case for summary judgment by demonstrating that the accident was the result of a series of sudden and spontaneous acts and that any lack of supervision was not the proximate cause of the infant plaintiff’s injury … . Jorge C. v City of New York, 2015 NY Slip Op 03772, 1st Dept 5-5-15

 

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Res Ipsa Loquitur Doctrine Can Apply to an Elevator Maintenance Company Even Where there Is No Proof the Company Had Actual or Constructive Notice of Elevator Misleveling

The First Department, in a full-fledged opinion by Justice Gische, over a two-justice partial dissent, determined that an elevator maintenance company could be liable for a fall allegedly caused by misleveling of an elevator under the doctrine of res ipsa loquitur, even though there was no evidence the elevator maintenance company had actual or constructive notice of the problem. The plaintiff’s allegations of the misleveling, coupled with the settled principle that elevator misleveling does not occur in the absence of negligence, raised a question of fact under the res ipsa loquitur criteria:

Res ipsa loquitur permits a fact finder to infer negligence based upon the sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant’s exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff’s part … . If a plaintiff establishes these elements, then the issue of negligence should be given to a jury to decide … .

Res ipsa loquitur does not create a presumption of negligence; rather it is a rule of circumstantial evidence that allows the jury to infer negligence … . A defendant is free to rebut the inference by presenting different facts or otherwise arguing that the jury should not apply the inference in a particular case … . Notice of a defect is inferred when the doctrine applies and the plaintiff need not offer evidence of actual or constructive notice in order to proceed … . Thus, while there is no proof of actual or constructive notice in this case, res ipsa loquitur can still support plaintiff’s claim … . Ezzard v One E. Riv. Place Realty Co., LLC, 2015 NY Slip Op 03791, 1st Dept 5-5-15

 

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Preliminary Injunction Prohibiting the Levying of Deficit Assessments by the Workers’ Compensation Board Properly Granted

The Fourth Department determined Supreme Court properly issued a preliminary injunction. All the criteria—irreparable harm, likelihood of success on the merits, and balancing of the equities—were met. The case involved the Workers’ Compensation Board’s levying of deficit assessments against petitioners pursuant to Workers’ Compensation Law section 50.  Matter of Riccelli Enters Inc v State of NY Workers’ Compensation Bd, 2014 NY Slip Op 03067, 4th Dept 5-2-14

 

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Allegation of Interference With Possession of Manufactured Home Stated Cause of Action for Conversion

The Fourth Department determined plaintiff had stated a cause of action for conversion.  Plaintiff alleged he had purchased a manufactured home and defendants prevented him from removing the home from defendant’s park:

“A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . We conclude that the complaint alleged sufficient facts to state a cause of action for conversion … . The complaint alleged that plaintiff was the owner of the manufactured home and that defendants interfered with plaintiff’s possession of that property by preventing plaintiff from removing the home from defendants’ park. The court dismissed that cause of action on the ground that there was no showing that defendants took ownership of the unit or obtained any benefit from the unit remaining on the property. We conclude, however, that plaintiff’s allegation that defendants interfered with plaintiff’s right to possess the property is sufficient to state a cause of action for conversion …, which, contrary to the court’s analysis, does not require an allegation, much less a showing, that defendants took ownership of the property or benefitted therefrom. Hillcrest Homes LLC v Albion Mobile Homes Inc, 2014 NY Slip Op 03065, 4th Dept 5-2-14

 

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Accepting a Verdict Before Responding to Jury Requests for Further Instructions and a Readback of Testimony Was a Mode of Proceedings Error Requiring a New Trial

The Fourth Department, over a dissent, determined the trial court’s acceptance of a verdict before addressing jury notes requesting further instructions on the law and a readback of testimony constituted a mode of proceedings error requiring reversal and a new trial:

…”[T]here are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury’s request for clarification of the law or further guidance on the process of deliberations” … . The jury may have resolved the factual issue regarding whether the eyewitness testified that she saw defendant leave the scene without further instruction assistance from the court …. However, the request for a readback of the instruction on reasonable doubt, the determination of which is the crux of a jury’s function, and for a readback of the instruction regarding “the importance a single witness in a case versus multiple witnesses,” “demonstrates the confusion and doubt that existed in the minds of the jury with respect to . . . crucial issue[s] . . . The jury is entitled to the guidance of the court and may not be relegated to its own unfettered course of procedure” … . We therefore conclude that the court’s failure to respond to the jury’s notes seeking clarification of those instructions before the verdict was accepted “seriously prejudiced” defendant … . People v Mack, 2014 NY Slip Op 03075, 4th Dept 5-2-14

 

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