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Complaint Against Highest Bidder on Real Property Which Subsequently Refused to Execute the Contract of Sale Properly Dismissed—No Agreement Which Satisfied the Statute of Frauds and No Part Performance

The Third Department affirmed Supreme Court’s dismissal of the complaint seeking specific performance of a real estate contract or damages for breach of contract.  Defendant executed and delivered the bidding package and the required down payment, bid on the property on line and was the highest bidder.  When the contract of sale was delivered to the defendant, the defendant refused to execute it.  Supreme Court dismissed the complaint because there was no agreement which satisfied the statute of frauds and there was no part performance.  The court explained the relevant analytical criteria:

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The statute of frauds provides, as relevant here, that a contract for the sale of real property “is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged” (General Obligations Law § 5-703 [2]). To satisfy that statute, the memorandum “must designate all parties, identify and describe the subject matter and state all of the essential terms of a complete agreement” … . The memorandum is not required to be contained in one document; separate “signed and unsigned writings [can] be read together, provided that they clearly refer to the same subject matter or transaction,” contain all of the essential terms of a binding contract …, and the “unsigned writing [was] prepared by the party to be charged” .. . At least one document signed by the party to be charged must “establish[] a contractual relationship between the parties,” with the unsigned documents referring on their face to the same transaction … . * * *

A contract may be enforced, despite failing to comply with the statute of frauds, “in cases of part performance” (General Obligations Law § 5-703 [4]). When analyzing part performance for potential invocation of equitable principles, courts should only consider the actions and detrimental reliance of the party seeking enforcement of the contract … . Additionally, the conduct must be “unequivocally referable” to the alleged agreement … . Post Hill LLC v E Tetz & Sons Inc, 2014 NY Slip Op 08089, 3rd Dept 11-20-14

 

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Employer Did Not Submit Employee Benefit Plan as Required by Workers’ Compensation Law 25 (4) (c)—Therefore the Employer Was Entitled to Reimbursement Only for the Workers’ Compensation Benefits Paid to the Employee and Not for the Amounts Paid Under the Employee Benefit Plan

The Third Department determined the employer was entitled to reimbursement only of the amount paid to an injured employee as worker’s compensation benefits, and not for the payments to the injured employee from a supplement (employee benefit) plan which paid the difference between the worker’s salary and the benefits:

The employer argues that the Board erred in applying Workers’ Compensation Law § 25 (4) (c), rather than subdivision (4) (a) of that section, in resolving its reimbursement request. Section 25 (4) (c) requires that employers seeking reimbursement for benefits paid to an injured employee pursuant to an employee benefit “plan . . . [that] provide[s] that the injured employee . . . shall be limited in the amount of benefits or payments thereunder if he or she shall be entitled to [workers’ compensation] benefits under this chapter” must file “proof of the terms of [the employee benefit] plan . . . before award of compensation is made” (Workers’ Compensation Law § 25 [4] [c]…). This Court has held that an employer’s right to “seek credits against schedule awards for moneys paid pursuant to an employee benefit plan . . . stems from Workers’ Compensation Law § 25 (4) (c) and is limited by the restrictions in that provision” … . We concluded that subdivision (4) (a), which imposes no requirement to file the terms of a plan and, indeed, “makes no reference to proof of plan terms[,] . . . was not intended to address moneys paid from an employee benefit plan” …

Here, …the employer’s workers’ compensation supplement plan limited the amount of benefits that an employee with a work-related injury would receive as compared to an employee entitled to benefits under the employer’s short-term disability plan–essentially deducting workers’ compensation benefits from the amount paid in salary under the short-term disability plan. Even considering the workers’ compensation supplement plan alone, we conclude that the injured employee is limited in the amount of benefits paid “thereunder”–meaning from the plan itself–if he or she is awarded workers’ compensation benefits (Workers’ Compensation Law § 25 [4] [c]). While the employee initially receives his or her full salary from the supplement plan, if the employer is reimbursed out of a workers’ compensation award, then the employee has received less in (or is “limited in the amount of”) benefits from the supplement plan itself due to his or her entitlement to those workers’ compensation benefits. Thus, Workers’ Compensation Law § 25 (4) (c) is applicable and, inasmuch as the employer admittedly failed to file proof of the terms of the plan prior to the first award of benefits, the Board properly determined that the employer’s right to compensation was limited to the amount paid to claimant as workers’ compensation benefits… . NYS Workers’ Compensation Bd v Bast Hatfield Inc, 2014 NY Slip Op 08082, 3rd Dept 11-20-14

 

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Fact that Prosecutor Had Represented the Defendant in the Past Did Not Require Disqualification—No Substantial Risk of an Abuse of Confidence

The Third Department determined that the fact that the District Attorney had represented the defendant 16 years before did not require disqualification:

Ordinarily, “[a] public prosecutor should be removed only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” … . Here, the fact that the District Attorney may have previously represented defendant in prior, unrelated criminal matters, without more, does not require his disqualification … . Further, although the District Attorney sought to impeach defendant using prior contempt convictions arising from marital problems that defendant alleges he had discussed with the District Attorney, County Court’s refusal to allow any inquiry into the underlying facts of these convictions eliminated any possible avenue by which the District Attorney might have utilized any confidential information that he may have acquired … . As 16 years had passed since any such alleged confidences had been shared, the passage of time had also diminished the risk of prejudice … . As defendant did not demonstrate a substantial risk of an abuse of confidence or any actual prejudice, we find no error in County Court’s determination … . People v Giroux, 2014 NY Slip Op 08060, 3rd Dept 11-20-14

 

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Failure to Apply for Zoning Variance Re: Sale of Adult Materials Rendered Plaintiff’s Free-Speech Challenge to the Code Speculative, i.e., Not Ripe for Review

The Third Department determined that plaintiff’s free-speech-violation claims re: the city’s failure to specify a zone for the sale of adult material were not ripe for review.  Plaintiff did not inform the city of his intent to sell adult material and did not use the procedures in place to obtain a zoning variance allowing the sale of adult material:

We shall not address plaintiff’s assertion that the failure of the Code of the City of Troy to specify a zone where adult materials may be sold violates plaintiff’s free speech rights under both the US and NY Constitutions, as this issue is not ripe for our review. According to the City’s Assistant Plans Examiner, if a particular use was not set forth in the list of allowed uses or special permit uses enumerated in the Code, as was the case with adult establishments, a use variance could be obtained by seeking approval from the appropriate zoning board. Because [plaintiff’s principal] did not disclose the extent of plaintiff’s sale of adult material in applying for a certificate of occupancy, and therefore did not follow the process set out in the Code to apply for a use variance, any harm that plaintiff may have suffered pursuant to such Code was speculative and contingent upon the City’s anticipated rejection of plaintiff’s proposal. Under these circumstances, plaintiff’s challenge to the constitutionality of the Code is not ripe for review … . Your Place LLC v City of Troy, 2014 NY Slip Op 08098, 3rd Dept 11-20-14

 

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Fabricated Checks Using Defendant’s Name and Signature Were Not “Forged Instruments”

The Third Department affirmed the dismissal of forgery charges because, although the defendant fabricated the checks at issue, the defendant did not portray herself as someone other than herself in executing the checks:

…[A] “… person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind” as described under Penal Law § 170.10 (Penal Law § 170.25). A forged instrument is defined as a “written instrument which has been falsely made, completed or altered” (Penal Law § 170.00 [7]). Importantly, a person “‘falsely makes’ a written instrument when he [or she] makes . . . [an] instrument, which purports to be an authentic creation of its ostensible maker . . ., but which is not such either because the ostensible maker . . . is fictitious or because, if real, he [or she] did not authorize the making . . . thereof” … . Determining whether a document is forged “does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity” … .

Defendant did not attempt to portray herself as someone other than herself in executing the checks … . Nor does this case present a situation in which defendant made out the checks without attaining the requisite authorization from another individual … . Thus, the checks at issue in this matter “were not falsely made,” as provided in the forgery statute … . Defendant’s fabrication of the checks bearing her name and address, as the purported bank account holder, makes her the ostensible maker … and the placement of defendant’s signature on the checks renders defendant the actual maker of the checks. Where, as here, the ostensible maker and the actual maker of the written instrument are the same person, the alleged crime of criminal possession of a forged instrument in the second degree must be dismissed … . People v Zeller, 2014 NY Slip Op 08068, 3rd Dept 11-20-14

 

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Workers’ Compensation Board’s Recovery of a Portion of Benefits Paid by the Board to an Injured Employee from the Special Disability Fund Did Not Operate to Satisfy the Board’s Judgment Against the Employer Re: those Benefits (Which the Employer Failed to Pay)

The Third Department determined that the Workers’ Compensation Board’s recovery from the Special Disability Fund (SDF) of a portion of the amount of a judgment against an employer did not operate to satisfy the judgment against the employer.  The judgment represented workers’ compensation benefits owed by the employer to an injured employee and paid by the Board:

In 2010, the Legislature added a clause to Workers’ Compensation Law § 50 (3-a) (7) (b) to provide that, … where a member fails to pay a levied assessment, the member “shall be deemed in default” (see L 2010, ch 56, part R, § 4). Once in default, the member is subject to the enforcement mechanism contained in Workers’ Compensation Law § 26, which provides, in pertinent part, that, where the employer defaults “in the payment of any compensation due under an award,” plaintiff may file, among other things, a certified copy of the decision awarding compensation and “thereupon judgment must be entered” … . * * *

When plaintiff [the Workers’ Compensation Board] was reimbursed by the SDF — which is also funded through plaintiff … it was essentially deprived of the ability to levy an assessment therefor. Thus, the judgment at issue here is intended to assist in recovering the money that plaintiff paid …, as plaintiff is authorized to do under Workers’ Compensation Law § 50 (5) (g). In sum, notwithstanding defendant’s claim that Supreme Court’s order results in a double recovery for plaintiff, given the statutory scheme, we conclude that no impermissible benefit to plaintiff results. Accordingly, we find that plaintiff’s judgment was not satisfied by reimbursement payments made by the SDF and, therefore, defendant’s motion for the filing of a satisfaction piece was properly denied. NYS Workers’ Compensation Bd v Bast Hatfield Inc, 2014 NY Slip Op 08082, 3rd Dept 11-20-14

 

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County Court Failed to Warn the Defendant that His Lack of Knowledge, When Compared with that of a Lawyer, Would Be Detrimental—Defendant Did Not Validly Waive His Right to Counsel

The Third Department reversed defendant’s conviction and ordered a new trial because County Court failed to ensure that defendant validly waived his constitutional right to counsel.  County Court did not adequately explain that defendant’s lack of knowledge, as compared to the knowledge of a lawyer, would be detrimental:

A defendant seeking permission to proceed pro se must “effectuate[] a knowing, voluntary and intelligent waiver of the right to counsel” …. To this end, the trial court is required to “conduct a ‘searching inquiry’ to clarify that [the] defendant understands the ramifications of such a decision” … . The court’s inquiry “‘must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication'” … . As the reviewing court, we may “look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel” (People v Providence, 2 NY3d at 583).

* * * [The court] did not sufficiently advise [defendant] of “the ‘dangers and disadvantages’ of proceeding pro se and the value of trained trial counsel knowledgeable about criminal law and procedure” … . In fact, with respect to the dangers of self-representation, the court merely noted that defendant risked “losing objectivity” by representing himself. Absent from County Court’s inquiry was any warning that defendant’s “lack of knowledge, relative to that of a lawyer, [would] be detrimental if [he] cho[se] to waive the right to counsel” … . People v Guarnieri, 2014 NY Slip Op 08067, 3rd Dept 11-20-14

 

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Denial of Pistol Permit Application Was Based Upon a Misinterpretation of Penal Law 400.00

The Third Department determined County Court had based its denial of petitioner’s pistol permit application upon a misreading of Penal Law 400.00.  County Court interpreted the statute to mean that the prior revocation of a pistol permit for any reason rendered the petitioner ineligible.  However, the statute should have been interpreted to refer only to prior revocations pursuant to Criminal Procedure Law 530.14 and Family Court Act 842-a:

Respondent denied petitioner’s pistol permit application based upon Penal Law § 400.00 (1) (k) (formerly Penal Law § 400.00 [1] [e]), finding that petitioner was ineligible for a pistol permit because of the prior revocation of his permit. Penal Law § 400.00 (1) (k) provides that no permit may be issued to an individual “who has [] had a license revoked or who is [] under a suspension or ineligibility order issued pursuant to the provisions of [CPL] 530.14 . . . or [Family Ct Act § 842-a].” Respondent interpreted this statute as two separate clauses and automatically barred petitioner from being issued a permit because his license had previously been revoked, despite the fact that the revocation was unrelated to either CPL 530.14 or Family Ct Act § 842-a.

We agree with petitioner that this was erroneous, as our reading of the statute indicates that the bar to issuance of a pistol permit “applies only in conjunction with the application of the Criminal Procedure Law and Family Court Act sections cited therein, which deal with orders of protection, and provides that a person who has previously had a firearms license revoked pursuant to those sections is ineligible to hold such a license”… .  * * *

Although the revocation of petitioner’s pistol permit and the reasons therefor unquestionably could have some bearing on whether there is “good cause” to deny his current application (Penal Law § 400.00 [1] [n]), respondent’s denial of the application was based, not on a finding of “good cause” but, rather, upon respondent’s misinterpretation of Penal Law § 400 (1) (k). Matter of Gerard v Koweek, 2014 NY Slip Op 08084, 3rd Dept 11-20-14

 

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Absence of a Certificate of Conformity Not a Fatal Defect Re: a Motion for a Default Judgment/Court Should Not Have Raised, Sua Sponte, a Defense to the Motion on Behalf of Defendant Who Did Not Answer or Appear

The Second Department reversed Supreme Court, finding that the absence of a certificate of conformity was not fatal to the motion for a default judgment:

In 2012, the plaintiff, a resident of the State of Georgia, commenced this action against the defendant, alleging breach of contract and unjust enrichment. On June 22, 2012, the defendant was served with a copy of the summons and complaint pursuant to CPLR 308(1). He neither appeared in the action, interposed an answer, nor otherwise moved with respect thereto. Thereafter, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.

” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” … . Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215[f]…). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements … . Although the Supreme Court found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect … . Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf … . Todd v Green, 2014 NY Slip OP 08004, 2nd Dept 11-19-14

 

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Pursuant to the Doctrine of Caveat Emptor, Seller of Home Was Not Obligated to Disclose Information About the Possibility of the Incursion of Golf Balls from the Neighboring Golf Course

The Second Department determined a complaint alleging fraudulent concealment against the seller of plaintiffs’ home (Glickenhous) was properly dismissed.  Plaintiffs bought property bordering a golf course.  After a tree bordering the course fell, golf balls landed on plaintiffs’ property.  The doctrine of caveat emptor required the dismissal of the complaint pursuant to CPLR 3211(a)(1) [documentary evidence utterly refutes allegations in the complaint] and CPLR 3211(a)(7) [pleading does not state a cause of action] :

“New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment” … . “Mere silence on the part of the seller, without some affirmative act of deception, is not actionable as fraud” … . ” To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor'” … . “Where the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations” … .

Here, Glickenhaus had no duty to disclose any information regarding the premises under the doctrine of caveat emptor … . Moreover, any risk to the property posed by the incursion of golf balls was a matter readily ascertainable by the plaintiffs through the exercise of ordinary intelligence, and the documentary evidence submitted on the motion demonstrates that any such concerns were a matter of public record not peculiarly within the knowledge of Glickenhaus … . Behar v Glickenhaus Westchester Dev Inc, 2014 NY Slip Op 07969, 2nd Dept 11-19-14

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