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Plaintiff Wife’s Waiver of Her Entitlement (Pursuant to a Divorce Stipulation) to Cost of Living Adjustments (COLA) to Maintenance Payments (By Acceptance of Checks With No COLA for Years) Was Withdrawn In 2008 When She Commenced Suit to Enforce the COLA Provision of the Stipulation

The Second Department determined that plaintiff wife had waived her entitlement, pursuant to the terms of a divorce stipulation, to cost of living adjustment (COLA) of her maintenance until she commenced an action to enforce the COLA provision of the stipulation. Plaintiff wife had waived the COLA by accepting maintenance payments (without COLA) for years. The waiver, however, was withdrawn when suit was commenced in 2008:

Waiver, which is the voluntary and intentional relinquishment of a contract right, ” should not be lightly presumed' and must be based on a clear manifestation of intent' to relinquish a contractual protection” … . It may be accomplished by affirmative conduct or failure to act so as to evince an intent not to claim the purported advantage … .

The mere existence of a nonwaiver clause does not preclude waiver of a contract clause … . However, a “waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” … .

As the plaintiff correctly contends, the record demonstrates that the plaintiff voluntarily relinquished her right to receive maintenance COLA increases as provided in the parties' 1983 stipulation from 1984 through May 2008, when such waiver was withdrawn … . Although the defendant is correct that the plaintiff raises for the first time on appeal her contention that she withdrew her waiver upon commencing this action, this contention may be reached since it involves a question of law that is apparent on the face of the record and could not have been avoided by the Supreme Court if it had been brought to its attention … . Thus, we reach this issue.

“A waiver, to the extent that it has been executed, cannot be expunged or recalled, but, not being a binding agreement, can, to the extent that it is executory, be withdrawn, provided the party whose performance has been waived is given notice of withdrawal and a reasonable time after notice within which to perform” … . Since the stipulation was an executory contract between the parties pursuant to which the defendant remained under a continuing obligation to pay maintenance to the plaintiff, upon the plaintiff's filing of the summons and complaint in this action, such waiver was withdrawn … . Stassa v Stassa, 2014 NY Slip Op 08629, 2nd Dept 12-10-14

 

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Lineup Was Unduly Suggestive

The Second Department determined the pretrial lineup identification procedure was unduly suggestive and sent the case back for an inquiry into whether the complainant had an independent source for the in-court identification:

The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant's clothing that the complainant gave to the police. Thus, at the lineup, the defendant's red shirt improperly drew attention to his person … . Since the hearing court's erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant's in-court identification, we remit the matter to the Supreme Court, Richmond County, to provide them with an opportunity to do so … . Pending a hearing and determination on that issue, the appeal is held in abeyance. People v Pena, 2014 NY Slip Op 08667, 2nd Dept 12-10-14 

 

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Motion to Set Aside a Verdict Properly Denied When Based Upon an Error Not Preserved by Objection

The Second Department noted that a motion to set aside a verdict (Criminal Procedure Law 330.30) is properly denied when it is based upon an error that was not preserved by objection.  (The issue could be addressed by the appellate court in the interest of justice, but the exercise of interest of justice jurisdiction was declined here.) People v Clayborne, 2014 NY Slip OP 08659, 2nd Dept 12-10-14

 

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Convictions Based Upon an Unconstitutional Statute Must Be Vacated

The Second Department noted that when a statute upon which defendant's conviction is based is declared unconstitutional the conviction must be vacated:

Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime” … . The Court of Appeals has held that Penal Law § 240.30(1), as written at the time of the defendant's conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions … . Accordingly, the defendant's convictions of attempted aggravated harassment in the second degree pursuant to Penal Law §§ 240.30(1)(a) and (1)(b) must be vacated. People v Edrees, 2014 NY Slip Op 08660, 2nd Dept 12-10-14

 

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Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff’s Counsel Should Not Have Been Allowed to Comment on Defense’s Failure to Call the Nurse Who Was Going to Testify About the Statements—New Trial Ordered

The Second Department determined plaintiff's alleged statements about the trip and fall which were referenced in hospital records were not admissible because the statements were not germane to diagnosis and treatment and were not prior inconsistent statements.  The defense was therefore prohibited from calling the triage nurse who heard the statements.  Plaintiff's counsel, however, was erroneously allowed to comment on the absence of the nurse from the trial (the defense had indicated in its opening that she would testify about discrepancies in the plaintiff's account of the accident).  A new trial was therefore ordered:

Supreme Court providently exercised its discretion in precluding the admission into evidence of the entries in the injured plaintiff's hospital records. The evidence, which purportedly constituted statements by the injured plaintiff indicating that the accident did not occur on the defendants' premises, were not germane to the injured plaintiff's diagnosis and treatment … . Further, those statements were either equivocal as to how the accident occurred, or consistent with the injured plaintiff's testimony at trial … . Accordingly, they were not admissible as prior inconsistent statements to impeach her credibility. Since those entries were not admissible, the testimony of the triage nurse with respect to those entries was not admissible.

However, permitting the plaintiffs' counsel to comment on the failure to call the triage nurse as a witness was error, since the defendants in fact produced the witness and were precluded from calling her to testify by the trial court. Further, the comments by the plaintiffs' counsel in summation were not supported by the evidence, and were inflammatory and unduly prejudicial, depriving the defendants of a fair trial … . Nelson v Bogopa Serv Corp, 2014 NY Slip Op 08612, 2nd Dept 12-10-14

 

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Mother’s Parental Rights Should Not Have Been Terminated Based Upon a Violation of a Suspended Judgment—Best Interests of the Child Should Have Been Considered

The Second Department determined Family Court erred when it terminated the mother's parental rights after she violated a suspended judgment (imposing drug-related conditions) without taking into account the best interests of the child.  The evidence supported the conclusion that terminating the mother's parental rights was not in the best interests of the child:

The Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence adduced, that the parent failed to comply with one or more of the conditions of the suspended judgment … . The best interests of the child, however, remain relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment … . Here, the preponderance of the evidence supported a finding that the mother failed to comply with certain conditions set forth in the suspended judgment. However, the evidence did not support the Family Court's conclusion that it was in the best interest of the child to terminate the mother's parental rights.  Matter of Phoenix DA …, 2014 NY Slip OP 08638, 2nd Dept 12-10-14

 

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Court Should Not Have Denied Biological Mother’s Petition to Enforce the Visitation Provision in a Surrender Agreement Without Making a Finding Based Upon the Best Interests of the Child—Failure to Make Such a Finding Rendered the Record Insufficient for Review—Matter Sent Back for a Hearing

The Second Department, over a dissent, determined that Family Court should not have denied the biological mother's petition to enforce the provision of a surrender agreement which allowed her to visit the child without a finding that the requested visitation is not in the best interests of the child.  Finding the record inadequate for review, the Second Department sent the matter back for a hearing:

Social Services Law § 383-c(2)(b) permits the parties to a judicial surrender agreement to provide for a biological parent's continued communication or contact with the child. In determining whether to approve the agreement, the court must determine whether continued contact with the biological parent would be in the child's best interests (see Social Services Law § 383-c[2][b]). A provision providing for visitation with the biological parent is not legally enforceable unless the court that approved the surrender agreement states, in a written order, that the provision would be in the child's best interests (see Domestic Relations Law § 112-b[2]; cf. Social Services Law § 383-c[2][b]). Even then, in an enforcement proceeding pursuant to Domestic Relations Law § 112-b, a court “shall not enforce an order under this section unless it finds that the enforcement is in the child's best interests” (Domestic Relations Law § 112-b[4]). In other words, there must be a best interests judicial determination both at the time the surrender agreement is accepted and at the time that enforcement of a visitation provision is sought … . * * *

Here, the Family Court dismissed the petition without affording the biological mother an opportunity to establish that enforcement of the visitation provision of the surrender agreement would be in the child's best interests. Thus, there is no hearing record for us to review. Further, while it may be true that the Family Court was aware of facts and circumstances that may have supported a determination that enforcement of the visitation provision would not have been in the child's best interests, the record before us does not contain those facts. Accordingly, we are unable to conduct effective appellate review of the court's determination or to make required findings on our own  … . Matter of Jayden A, 2014 NY Slip Op 08637, 2nd Dept 12-10-14

 

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Question of Fact Raised About Whether Any Delay In Insured’s Notifying the Insurer of the Accident Was Attributable to the Insured’s “Good-Faith Belief of Non-Liability”

The Second Department determined a question of fact had been raised about whether any delay in notifying the insurer of the accident was the result of a good-faith belief of non-liability:

“A provision that notice be given as soon as practicable' after an accident or occurrence, merely requires that notice be given within a reasonable time under all the circumstances” … . An insured's failure to provide the insurer notice within a reasonable period of time constitutes “a failure to comply with a condition precedent which, as a matter of law, vitiates the contract” … .

However, there may be circumstances that will explain or excuse a delay in giving notice and show it to be reasonable, such as an insured's “good-faith belief of nonliability” … . The insured's belief of nonliability “must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence” … . “Ordinarily, the question of whether the insured had a good-faith belief in nonliability, and whether that belief was reasonable, presents an issue of fact and not one of law” … . “It is only when the facts are undisputed and not subject to conflicting inferences that the issue can be decided as a matter of law” … . Integrated Constr Servs Inc v Scottsdale Ins Co, 2014 NY Slip Op 08606, 2nd Dept 12-10-14

 

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Single Step Was Open and Obvious and Not Inherently Dangerous

The Second Department determined a single step separating the carpeted dining area from the rest of the restaurant was open and obvious and not inherently dangerous:

A property owner has a duty to maintain his or her property in a reasonably safe manner … . However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Here, the defendants … submitted evidence sufficient to establish, prima facie, that the single step separating the carpeted dining area from the rest of the restaurant in which the plaintiff allegedly fell, which consisted of wooden flooring, was open and obvious, and not inherently dangerous … . Dillman v City Cellar Wine, Bar & Grill, 2014 NY Slip Op 08598, 2nd Dept 12-10-14

Similar issue and result in Varon v New York City Dept of Educ, 2014 NY Slip Op 08633, 2nd Dept 12-10-14.

 

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Operating Agreements Created a Limited Liability Company In Which Members Did Not Share Control of the Development Project or Responsibility for Losses/No Fiduciary Duty Arises from a Limited-Liability-Company Relationship, As It Does from a Partnership or Joint Venture

The Second Department noted that a fiduciary duty did not arise among members of a limited liability company, as it would have in a partnership or joint venture.  Here, the operating agreements created a limited liability company in which (unlike a partnership or joint venture) the members did not share control of the project or responsibility for losses:

“Generally, where parties have entered into a contract, courts look to that agreement to discover . . . the nexus of [the parties'] relationship and the particular contractual expression establishing the parties' interdependency. If the parties . . . do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them'” … . Here, the written operating agreements submitted in support of the motions demonstrated an intent to form a limited liability company, not a partnership or joint venture that would have given rise to a fiduciary relationship. Moreover, the members of the limited liability company did not share control of the subject development project or responsibility for the losses, which are elements of both a joint venture and a partnership … . Grand Pac Fin Corp v 97-111 Hale LLC, 2014 NY Slip Op 08604, 2nd Dept 12-10-14

 

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