You are here: / Questions of Fact Re: Whether a Deed Was Forged and Whether a Will Was...

Search Results

/ ,

Questions of Fact Re: Whether a Deed Was Forged and Whether a Will Was Duly Executed

The Second Department determined there existed questions of fact whether a deed was a forgery and whether a will was duly executed.  In the course of the decision, the court explained: (1) there can be no bona fide purchasers or encumbrancers of real property based on a forged deed; (2) the transfer of title of real property devised under a will title vests on death not probate; (3) forged deeds are null and void ab initio; and (4) there was insufficient proof due execution of the will—no proof an attorney drafted the will or supervised its execution–no proof decedent possessed testamentary capacity:

Pursuant to Real Property Law § 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller … . However, a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as it is void and conveys no title … . …

Generally, “title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death and not at the time of probate” … . Here, however, since the validity of the will is being challenged by the petitioner, it was incumbent upon the respondents, as the proponents of the will, to prove due execution of the will and testamentary capacity … . …

… [T]he … evidence was insufficient to establish that the will was executed in accordance with the formalities required by law (see EPTL 3-2.1), and that the decedent was of sound mind and memory when he executed the will and understood the nature and consequences of executing the will … . While there is a presumption of regularity where the drafting attorney supervised the will’s execution …, here, there was no evidentiary support for the respondents’ conclusory contention that the will was drafted by [the attorney] or that he supervised the execution ceremony. Moreover, the respondents failed to adduce any evidence demonstrating that the decedent possessed testamentary capacity when he signed the will. Matter of Raccioppi, 2015 NY Slip Op 04135, 2nd Dept 5-13-15

 

/ ,

Court Not Required to Obtain a New Risk Assessment Instrument After People Filed a Petition for an Upward Modification Based Upon a New Offense Committed In Violation of Defendant’s Probation

Re: the People’s petition for upward modification, the Second Department determined County Court was not required to obtain a new Risk Assessment Instrument (RAI) after the defendant committed a “new” sex crime in violation of his probation.  The petition for upward modification was properly sent to the Board of Examiners of Sex Offenders (Board) and the Board properly responded by letter:

Correction Law § 168-o specifies that, upon the receipt of such a petition, “the court shall forward a copy of the petition to the board and request an updated recommendation pertaining to the sex offender” (Correction Law § 168-o[4]). The County Court followed this procedure and received an “updated recommendation” from the Board, in the form of a letter. The RAI, an “objective assessment instrument” created by the Board to assess an offender’s “presumptive risk level” … was designed to assist the courts in reaching an initial SORA determination. Indeed, if a new RAI was completed upon the filing of the People’s petition, it would be almost identical to the initial RAI, in which 10 out of the 15 risk factors addressed the subject sex offense and crimes committed prior to that offense … . Thus, the County Court was not required to obtain a new RAI from the Board in considering the People’s petition for an upward modification pursuant to Correction Law § 168-o(3). People v Williams, 2015 NY Slip Op 04108, 2nd Dept 5-13-15

 

/ ,

In Order for a Municipality to Be Liable for the Creation of a Dangerous Condition, the Dangerous Condition Must Result Immediately from the Negligent Act—Here the Allegation the Dangerous Condition Developed Over a Period of Years Was Not Sufficient

The Second Department noted that the “prior written notice” requirement (as a prerequisite for municipal liability for a dangerous condition) is independent of any actual or constructive notice of a defect.  Although there is an exception to the “prior written notice” requirement where the municipality created the defect through an affirmative act of negligence, that act of negligence must immediately result in the existence of a dangerous condition. It is not sufficient to allege that the defect developed over a period of years (here allegedly stemming from work done in 2008):

“A municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice” … . A defendant’s actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement … . Further, although an exception to the prior written notice requirement exists where the municipality created the defect through an affirmative act of negligence …, that exception “[is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition”… . DeVita v Town of Brookhaven, 2015 NY Slip Op 04086, 2nd Dept 5-13-15

 

/

Court Could Not Promise a “Violent Felony Override” Allowing Defendant to Participate in Programs While Incarcerated—Only the DOCCS Can Determine Defendant’s Eligibility—Conviction by Guilty Plea Reversed

The Second Department determined the sentencing court had no authority to promise the defendant, as part of the plea bargain, a “violent felony override” which would allow the defendant to participate in a variety of programs while incarcerated. Where a defendant is statutorily qualified (as defendant was) it is up to the Department of Corrections and Community Supervision (DOCCS) to determine a defendant’s eligibility for the programs.  Therefore, defendant’s guilty plea was reversed because it was based in part on misinformation (not knowing and voluntary):

… [A] “violent felony override” is “an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense” (id.; see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). “Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility” … . The document itself does not qualify an inmate for eligibility for temporary release … “It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility” (id.; see generally 7 NYCRR 1900.4). The issuance of the document specified in 7 NYCRR 1900.4(c)(1)(iii) is not discretionary, and a defendant is entitled to have the exact statutory provisions under which he or she was convicted specified in the sentence and commitment … .

As part of the plea agreement, the County Court promised the defendant that it would sign a “violent felony override,” which would make the defendant eligible for several programs in prison. Since the document specified in 7 NYCRR 1900.4(c)(1)(iii) does not, by itself, qualify an inmate for eligibility for temporary release, and eligibility for temporary release programs are determined by DOCCS, the court exceeded its authority by promising the defendant something that it had no authority to promise in exchange for the defendant’s plea of guilty. Under these circumstances, the defendant’s plea of guilty was not knowing, voluntary, and intelligent… . People v Ballato, 2015 NY Slip Op 04140, 2nd Dept 5-13-15

 

 

/

Defect Was Trivial As a Matter of Law—Criteria Explained

The Second Department determined the slip an fall case should have been dismissed.  The defect was trivial as a matter of law: “… [P]roperty owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . There is no minimal dimension test or per se rule that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable … “. [internal quotations omitted]  Santacruz v Taco Bell of Am., LLC, 2015 NY Slip Op 04111, 2nd Dept 5-13-15

 

/ ,

Conviction In a Military Tribunal of “Assault with Intent to Commit Rape” Was Not a “Sex Offense” Under New York Law—However, the Conviction Could Be Considered Under the “Prior Criminal History” Risk Assessment Category

The Second Department determined that conviction of “assault with intent to commit rape” in a military tribunal should not have been as a “prior sex crime” to determine defendant’s risk level.  The offense did not qualify as a “sex offense” under New York law and did not include all the elements of any New York sex offense.  The conviction, however, could be considered as “a prior criminal history” in the risk assessment:

…[T]he military offense of which the defendant was convicted did not qualify as a “sex offense,” as defined in Correction Law § 168-a(2)(d)(ii) … . Furthermore, contrary to the People’s contention, the defendant’s military offense does not “include[ ] all of the essential elements” (Correction Law § 168-a[2][d][i]) of attempted rape in the first degree under New York law, and thus does not qualify as a “sex offense” on that basis.

Although the defendant’s prior military offense of assault with intent to commit rape [*2]does not qualify as a sex offense, it does evidence a prior criminal history, People v Lancaster, 2015 NY Slip Op 04106, 2nd Dept 5-13-15

 

/ , , ,

Mortgagee in Possession Has a Duty to Care for the Property/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action, Where Documentary Evidence Is Submitted, Explained

In the context of a motion to dismiss for failure to state a cause of action (where documentary evidence was submitted), the Second Department determined a mortgagee in possession of property (here because the property owner went bankrupt) has a duty to care for the property which is identical a property owner’s duty.  Here plaintiffs alleged the property, which had been damaged by fire, was allowed to deteriorate to the extent that plaintiffs’ neighboring property was damaged. The causes of action for nuisance, negligence and trespass survived the motion to dismiss.  The court noted its role when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:

A motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . While the documentary evidence submitted by One West established that it did not own the defendants’ property at any relevant time … , that evidence did not “utterly refute” the plaintiffs’ contention that One West had a duty based on its status as a mortgagee in possession. In fact, the documents, which establish ownership, did not address the plaintiffs’ contention regarding One West’s alleged status as a mortgagee in possession … . Accordingly the Supreme Court erred in granting the motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(1).

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … .

The plaintiffs’ contention that [defendant] was a mortgagee in possession has not been shown to be “not a fact at all” … . If [defendant] were, in fact, a mortgagee in possession, it was “bound to employ the same care and supervision over the mortgaged premises that a reasonably prudent owner would exercise in relation to his [or her] own property; he [or she] is bound to make reasonable and needed repairs, and is responsible for any loss or damage occasioned by his willful default or gross neglect in this regard” … . Thus, the complaint, as augmented by the affidavit of the plaintiff Emeta Allen, which was submitted in opposition to the motion to dismiss …, properly set forth causes of action alleging nuisance, negligence, and trespass, and the plaintiffs have causes of action sounding in nuisance, negligence, and trespass. Allen v Echeverria, 2015 NY Slip Op 04075, 2nd Dept 5-13-15

 

/ ,

Denial of Plaintiff’s Motion to Intervene in a Foreclosure Action Did Not Prohibit, Under the Doctrine of Collateral Estoppel, the Plaintiff’s Action to Be Declared the Owner of the Subject Property/A Person With an Interest in Real Property Who Is Not Joined in a Foreclosure Action Is Unaffected by the Judgment of Foreclosure

The Second Department, reversing Supreme Court, determined that plaintiff’s (Jamison’s) action to declare her the owner of property subject to foreclosure should not have been dismissed under the doctrine of collateral estoppel.  Plaintiff’s ownership of the property had not been determined in the foreclosure action in which she unsuccessfully sought to intervene.  In addition, a person with an interest in real property who is not joined in a foreclosure action remains unaffected by the judgment of foreclosure:

The doctrine of collateral estoppel bars relitigation of an issue which has been necessarily decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling … . The party seeking the benefit of the doctrine of collateral estoppel must establish that the identical issue was necessarily decided in the prior action, and is determinative in the present action … . Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination … .

Here, the bank failed to establish that the issue of whether Jamison has an interest in the subject property had already been decided, since the order it relied upon expressly provided that no determination had made by the court with respect to the issue of whether or not Jamison was a necessary or indispensable party, and Jamison’s motion to intervene as of right in the foreclosure action was denied without explanation. In any event, where a person with an interest in real property is not joined as a party to an action to foreclose a mortgage on that property, that person’s rights are left unaffected by the judgment of foreclosure and sale, and the foreclosure sale may be considered void as to the omitted person … . Accordingly, Jamison’s interest, if any, in the subject property was neither litigated nor determined in the foreclosure action, and the order denying her motion to intervene as of right in the foreclosure action was not an adjudication of her rights on the merits. Jamison v Aquai, 2015 NY Slip Op 04097, 2nd Dept 5-13-15

 

/

Leave to Amend Complaint Should Have Been Granted—Criteria Explained

The Second Department determined Supreme Court should have allowed plaintiff to amend the complaint. Leave to amend should only be denied if the added causes of action are patently insufficient or devoid of merit.  Defendant would suffer no prejudice or surprise:

“In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Under this standard, a party seeking leave to amend a pleading need not make an evidentiary showing of merit … , and leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt … . * * * …[The] proposed causes of action are neither patently insufficient nor palpably devoid of merit. Moreover, the parties against whom those causes of action are sought to be asserted will not suffer undue prejudice or surprise resulting directly from the plaintiff’s delay in seeking to amend the complaint … . Stein v Doukas, 2015 NY Slip Op 04115, 2nd Dept 5-13-15

 

/

Inadequate Excuse for Delay In Answering Complaint—Motion to Vacate Default Judgment Should Have Been Denied

The Second Department determined Supreme Court should not have granted the bank’s (BAC’s) motion to vacate a default judgment in a foreclosure action.  The bank’s excuse (clerical error) was conclusory and belied by a pattern of neglect:

“To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense” … . “Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … .

Here, BAC’s proffered excuse, that its default in appearing and answering the complaint was due to a clerical error, was unsubstantiated, conclusory, and inadequately explained, and, therefore, did not constitute a reasonable excuse for the default … . Moreover, the record demonstrates that the alleged mistake was not an isolated error, but part of a pattern of “repeated neglect” … . In that regard, BAC failed to present a reasonable excuse for its further delay, after being apprised of its default, in cross-moving to vacate its default. Wells Fargo Bank, N.A. v Krauss, 2015 NY Slip Op 04123, 2nd Dept 5-13-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy