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Remarks Made In the Course of Litigation Privileged

The Second Department determined that the allegedly defamatory remarks were privileged because they were made during the course of litigation:

To properly state a cause of action alleging defamation, a plaintiff must allege that, without privilege or authorization, and with fault as judged, at minimum, by a negligence standard, the defendant published to a third party a false statement … . Additionally, unless the defamatory statement fits within one of the four “per se” exceptions …, a plaintiff must allege that he or she suffered “special damages”—–“the loss of something having economic or pecuniary value” … . Where an allegedly false statement is defamatory per se, the law presumes that damages will result, so the plaintiff need not allege or prove them … . An otherwise defamatory statement may be “privileged” and therefore not actionable … . Generally, as relevant here, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absolute privilege, so long as the statements may be considered in some way “pertinent” to the issue in the proceeding … . This privilege, or “immunity” …, applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made… . El Jamal v Weil, 2014 NY Slip Op 02408, 2nd Dept 4-9-14

 

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Neglect Finding Can Be Based Upon a Single Incident of Excessive Corporal Punishment

The Second Department noted that a finding of neglect can be based upon a single incident of excessive corporal punishment:

Neglect may be established by even a single incident of excessive corporal punishment … . The Family Court’s assessment of the credibility of witnesses is entitled to considerable deference … .Here, contrary to the appellant’s contention, the Family Court’s finding of neglect of the child Shervon M., based on excessive corporal punishment, was supported by a preponderance of the evidence (see Family Ct Act § 1012[f][i][B]…). The Family Court’s finding that the appellant engaged in excessive corporal punishment when he struck the child Shervon M. several times with a belt, causing raised red marks on her arm and legs, is supported by the evidence presented at the fact-finding hearing. Shervon’s out-of-court statements that the appellant struck her with a belt were sufficiently corroborated by the caseworker’s observations of Shervon’s injuries and the appellant’s admission to the caseworker that he had struck Shervon with a belt in the past (see Family Ct Act § 1046[a][vi]…).  Matter of Nurridin B, 2-14 NY Slip Op 02431, 2nd Dept 4-9-14

 

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Mother’s Interference With Relationship Between Father and Child Warranted Modification of Custody Arrangement Entered Into by Stipulation

The Second Department determined father had made a sufficient showing of a change in circumstances to justify a modification of custody arrangements created by stipulation:

Here, the father established that there had been a sufficient change in circumstances since the time of the stipulation. Specifically, he demonstrated that the mother had interfered with his relationship with the child, such that a modification in the custody arrangement was in the best interests of the child. The mother’s unfounded allegations of sexual abuse of a child that she made against the father were an act of interference with the parent-child relationship so inconsistent with the best interests of the child as to raise a strong probability that the mother is unfit to act as custodial parent … . The mother’s conduct here in making these unfounded allegations demonstrated a purposeful placement of her self-interest above the interests of others … . The record shows that the father is more likely than the mother to foster a relationship between the child and the noncustodial parent … . The mother’s unfounded allegations of sexual abuse of a child, along with her other acts of interference in the relationship between the father and child since the stipulation, established a sound and substantial basis for the Family Court’s determination that there had been a sufficient change in circumstances warranting a modification of the custody arrangement in the child’s best interests. Matter of Fargasch v Alves, 2014 NY Slip Op 02435, 2nd Dept 4-9-14

 

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Children’s Out-Of-Court Statements May Corroborate One Another

The Second Department noted that out-of-court statements by children can corroborate one another in a sexual abuse case:

The Family Court’s determination that the maternal stepgrandfather sexually abused the subject children was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[e], [g]; 1046[b][i]…).  “It is well established that the out-of-court statements of siblings may properly be used to cross-corroborate one another” … . Here, the evidence presented at the fact-finding hearing established that, in May 2011, then-10-year-old Naziya D. and 3-year-old Jada A. made independent and consistent out-of-court statements to several individuals describing similar incidents of sexual abuse by the maternal stepgrandfather. Further, the children’s statements were corroborated by the petitioner’s progress notes and the mother’s testimony as to the children’s statements … .Additionally, where, as here, the Family Court is primarily confronted with issues of credibility, its findings must be accorded deference on appeal, as they were supported by the record … .The Family Court, upon a finding of abuse pursuant to Family Court Act § 1012(e), must make a further finding of the specific sex offenses that were committed, as defined in Penal Law article 130 … .  Even if the Family Court fails to make such a finding, this Court can make the finding that the Family Court should have made… . Matter of Jada A, 2014 Slip Op 02430, 2nd Dept 4-9-14

 

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No Duty Owed by Agent to Client—Client Never Requested Type of Insurance At Issue

The Second Department determined an insurance agent was not obligated to indemnify the plaintiffs in the underlying action because the client never requested the specific (automobile) coverage at issue. The court explained the nature of a duty owed by an agent to the agent’s client:

“An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time or to inform the client of the inability to do so” … . This “duty is defined by the nature of the client’s request” … . “Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage” … . Here, Ginsberg, a Nationwide insurance agent who sold the plaintiff … the subject policies of insurance, established, prima facie, that the plaintiffs did not specifically request automobile coverage, either in connection with their initial 2003 insurance applications, or in connection with subsequent renewal applications. Maxwell Plumb Mech Corp v Nationwide Prop & Cas Ins Co, 2014 NY Slip Op 02412, 2nd Dept 4-9-14

 

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Plaintiff Did Not Demonstrate Standing—No Proof Underlying Debt Was Transferred to the Plaintiff Along with the Mortgage

The Second Department determined the plaintiff in a mortgage foreclosure proceeding did not demonstrate standing because there was no proof the underlying debt was transferred to the plaintiff along with the mortgage:

Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief… .  In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” … . ” Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation'” … . “Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity” . Here, the evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered to it prior to the commencement of the action, and the plaintiff similarly failed to submit a written assignment of the note. Bank of NY Mellon v Gales, 2014 NY Slip Op 02402, 2nd Dept 4-9-14

 

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Open and Obvious Condition Precluded Slip and Fall Suit

The Second Department determined a slip and fall case was properly dismissed because the condition which caused the fall, seed pods which had fallen on the steps from a tree, was open and obvious:

The plaintiff allegedly was injured when she slipped and fell on the back steps of the defendant’s residence. The plaintiff testified that, prior to her fall, she felt a “hard cone” or “ball” underneath her foot. After her fall, she observed a crushed seed ball, about the size of a golf ball, on the step. Two or three other seed balls and some leaves were scattered about the steps and landing. The seed balls and leaves apparently had fallen from a nearby tree belonging to the defendant’s neighbor.

The defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact. Scalice v Braisted, 2014 NY Slip Op 02421, 2nd Dept 4-9-14

 

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Plaintiff Did Not Establish It Was the Lawful Holder of the Note on the Date the Action Was Commenced

The Second Department determined plaintiff did not demonstrate entitlement to summary judgment because it did not establish it had standing as the lawful holder or assignee of the underlying note.  The court explained the applicable law, noting that the assignment of a mortgage without an assignment of the note is a nullity, but the where a note is transferred, the mortgage securing the debt passes as an incident to the note:

Where, as here, the issue of standing is raised by a defendant, a plaintiff must prove its standing to be entitled to relief … . In a mortgage foreclosure action, a plaintiff has standing where it is both the holder of the subject mortgage and of the underlying note at the time the action is commenced … . Where a note is transferred, a mortgage securing the debt passes as an incident to the note … . By contrast, an assignment of a mortgage without assignment of the underlying note or bond is a nullity … . “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation” … .

Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing as the lawful holder or assignee of the subject note on the date it commenced this action… .  MLCFC 2007-9 Mixed Astoria LLC v 36-02 35th Ave Dev LLC, 2014 NY Slip Op 02416, 2nd Dept 4-9-14

 

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Plaintiff’s Allegation of Inadequate Lighting Was a Sufficient Indication She Was Aware of the Cause of Her Fall

The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case.  The court found that plaintiff had presented evidence of the cause of the fall (inadequate lighting) and the defendants did not demonstrate that they neither created the dangerous condition nor had constructive notice of it:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation

Here, the respondents failed to establish, prima facie, that the injured plaintiff did not know what had caused her to fall. The injured plaintiff testified during her deposition that the lighting in the hallway was so poor that she could hardly see her surroundings and that she kept her hand on the wall to guide her down the hallway. This testimony, which the respondents submitted with their motion, itself demonstrated the existence of a triable issue of fact as to whether the alleged lack of adequate lighting was a proximate cause of the accident … . Additionally, the respondents failed to establish that they neither created the allegedly dangerous condition nor had actual or constructive notice of it … . Since the respondents failed to satisfy their initial burden of establishing their prima facie entitlement to judgment as a matter of law, their motion should have been denied without regard to the papers submitted in opposition … .  Palahnuk v Tiro Rest Corp, 2014 NY Slip Op 02418, 2nd Dept 4-9-14

 

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Question of Fact About Whether Good Faith Lender, Which Recorded Its Mortgage First, Had a Duty to Inquire About a Prior Mortgage

The Second Department determined there was a question of fact about the priority of a mortgage held by a good-faith lender for value and recorded first:

“Under New York’s Recording Act (Real Property Law § 291) a mortgage loses its priority to a subsequent mortgage where the subsequent mortgagee is a good-faith lender for value, and records its mortgage first without actual or constructive knowledge of the prior mortgage” … . “[A] mortgagee is under a duty to make an inquiry where it is aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue” … . Here, the moving defendants demonstrated, prima facie, that they have a first lien with respect to Lot 56 by submitting evidence that they were good faith lenders for value protected by Real Property Law § 291 … . However, in opposition, the plaintiff’s submissions … raised a triable issue of fact as to whether the moving defendants had a duty to inquire about whether the mortgage previously entered into …. was intended to encumber the entirety of [the property].   Wells Fargo NA v Savinetti, 2014 NY Slip Op 02428, 2nd Dept 4-9-14

 

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