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Questions of Fact About Defamatory Meaning and Malice Re: Statements Concerning a Public Figure

The Third Department determined plaintiff, a public figure, had raised questions of fact about whether defamatory advertisements were done with malice:

Plaintiff was a public figure … and, as such, he must prove by clear and convincing evidence that defendant made a false statement with actual malice … . Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including whether the allegedly defamatory words have a precise meaning that is readily understood, whether the statement can be proven as true or false, and whether the context and surrounding circumstances would indicate that the comment is an opinion … . Further, summary judgment dismissing a defamation action may be avoided where the statement is a “‘mixed opinion’ implying a basis in undisclosed fact” or “‘pure opinion’ that accuses the plaintiff of engaging in criminal conduct”… .Since defendant’s statement includes both a strong inference that he knows undisclosed facts that support his assertion that plaintiff engaged in “numerous unscrupulous dealings” when he previously was Town Supervisor and includes an example that indicated possible unlawful abuse of that office, we agree with Supreme Court that the statements are sufficiently susceptible to a defamatory meaning to avoid summary judgment … . Moreover, defendant essentially acknowledged at his deposition that he had no basis for some of his accusations, and when this proof is viewed most favorably to the nonmovant, there is adequate evidence in the record to raise a triable issue of fact regarding whether defendant acted with actual malice… . Baker v Galusha, 517125, 3rd Dept 2-27-14

 

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Mother’s Failure to Seek Medical Care for Child Coupled With Mother’s Mental Illness Supported Neglect Finding

The Third Department determined Family Court’s neglect finding was supported by evidence mother did not seek needed dental and medical care for her child and suffered from psychological problems which created an imminent risk of harm to the child:

To establish neglect, a petitioner must demonstrate, by a preponderance of the evidence, that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to the failure of the parent or caretaker to exercise a minimum degree of care (see Family Ct Act §§ 1012 [f] [i]…). In determining the minimum degree of care, courts must objectively evaluate parental behavior in terms of whether “a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing” … . On this basis, a failure to provide adequate medical care and/or follow through with necessary medical treatment constitutes neglect… . * * *”While evidence of mental illness, alone, does not support a finding of neglect, such evidence may be part of a neglect determination when the proof further demonstrates that a respondent’s condition creates an imminent risk of physical, mental or emotional harm to a child”… . Matter of Josephine BB …, 516132, 3rd Dept 2-27-14

 

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Criteria for Interpreting a Settlement Agreement Which Is Incorporated But Not Merged Into the Judgment of Divorce

In finding that a settlement agreement was not ambiguous and had been complied with by the mother, the Third Department explained the status of a separation agreement which is incorporated but not merged into a judgment of divorce:

A settlement agreement that is incorporated into, but not merged with, a judgment of divorce remains an independent contract, binding on the parties and subject to the rules of contract interpretation … . “Where the language of the agreement is clear, the court must determine the intent of the parties by examining the agreement itself” … .”Whether language is ambiguous is a matter of law to be determined by the court, and in rendering this determination a court may not add or excise terms, nor distort the meaning of those used” … . Matter of Drake v Drake, 516960, 3rd Dept 2-27-14

 

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Failure to Allege that But for the Legal Malpractice the Causes of Action Would Have Succeeded Required Dismissal

The Third Department determined plaintiff did not make out a prima facie case of legal malpractice because there was no allegation the causes of action would have been successful but for the alleged malpractice:

…[D]efendants correctly argue that Supreme Court should have granted their motion to dismiss the legal malpractice claim. It is well established that, “[i]n order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” … . Here, although the complaint is replete with allegations of [the attorney’s] alleged failures to use reasonable and ordinary skill in connection with both of plaintiff’s underlying claims, it contains no allegation that, but for these alleged failures, plaintiff would have been successful on either claim. Therefore, even if we accept the allegations as true and liberally construe the complaint to allege negligent representation by [the attorney] …, the allegations are insufficient to make out a prima facie case of legal malpractice… . Hyman v Schwartz, 516728, 3rd Dept 2-27-14

 

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Summary Judgment Finding Derivative Neglect Should Not Have Been Granted

The Third Department determined Family Court should not have granted summary judgment finding derivative neglect. Despite the recent finding of neglect of three other children (by consent), there were questions of fact about whether the conditions leading to the previous neglect determination were being addressed:

Family Court erred in granting summary judgment because triable issues of fact remain. Summary judgment is rarely used in Family Court proceedings, and is only appropriate when no triable issue of fact exists … . While proof that respondent previously neglected three other children was admissible on the issue of whether he neglected Karm’ny (see Family Ct Act § 1046 [a] [i]), such proof alone typically is not sufficient to establish derivative neglect … . “Derivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent’s care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist” … . The prior neglect determination here occurred less than three months before the instant petition was filed, sufficiently proximate so as to give rise to an inference that the conditions leading to such determination still existed … . Despite that inference, the testimony from the Family Ct Act § 1028 hearing raised questions of fact regarding whether respondent was appropriately dealing with those conditions… . Matter of Karm’ny…, 516250, 3rd Dept 2-27-14

 

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Application to Vacate Default Judgment in Tax Foreclosure Proceeding Governed by Two-Year Statute of Limitations (Under the Facts, the One-Month Statute Did Not Apply)/Deed Purporting to Transfer Property from Religious Organization Invalid for Failure to Comply with the Religious Corporation Law/Notice of Tax Foreclosure Sufficient Even Though Actual Owner Not Notified

The Third Department determined petitioner’s application to set aside a tax foreclosure judgment was timely, but determined the application was properly denied because the notice of the foreclosure proceeding was adequate, even though petitioner, the actual owner of the property, was not notified. Petitioner, a religious organization, had transferred the property by deed to Forbes, a minister, in 1985. Forbes paid property taxes for several years, but when the payments ceased the county moved to foreclose, naming Forbes as the owner. It turned out that the deed to Forbes was invalid because the transfer did not comply with the Religious Corporation Law. The actual owner, petitioner, was not notified of the foreclosure proceedings. In affirming the judgment of foreclosure, the court discussed the appropriate statute of limitations under the facts, the property-transfer requirements of the Religious Corporation Law, and the tax-foreclosure notice requirements:

Initially, Supreme Court erred in determining that petitioner’s application was untimely. Unlike a motion to vacate a default judgment in a tax foreclosure proceeding, which “may not be brought later than one month after entry of the judgment” (RPTL 1131…), a person or entity challenging the validity of a deed transferred in connection with a tax foreclosure proceeding faces a two-year statute of limitations (see RPTL 1137…). As petitioner was not a party to the foreclosure proceeding and now seeks to set aside the judgment on the basis that respondent failed to provide notice to the rightful owner, the application was timely (see RPTL 1137).The 1985 deed to Forbes was invalid. A religious corporation shall not sell “any of its real property without applying for and obtaining leave of the court” pursuant to N-PCL 511 (Religious Corporations Law § 12 [1]…). Under N-PCL 511 (b), the Attorney General must be notified before any sale may be finalized. Petitioner did not seek court approval in 1985 or thereafter (see Religious Corporations Law § 12 [1], [9]), nor was the Attorney General notified of the transfer of the property. Where court approval is not obtained for the transfer of real property from a religious corporation, the conveyance is invalid … . Accordingly, the 1985 deed was invalid and Forbes should not have had any legal right to the property. * * *When determining the reasonableness of the taxing authority’s attempts to provide notice to interested parties, the court may take into account the conduct of such parties … Here, petitioner indicated that it intended to convey the property to Forbes – its then-minister – in 1985 and was only unsuccessful due to their lack of legal knowledge. Additionally, petitioner did not take any action against Forbes to regain title, despite the deed having been filed for nearly 27 years at the time the foreclosure proceeding was commenced. Under the circumstances, including respondent’s provision of proper statutory notice to the owner of record, respondent complied with due process and satisfied its obligation of searching for interested parties, and petitioner has not demonstrated that any additional steps or more exhaustive search was required here… . Matter of City of Hudson…, 516690, 3rd Dept 2-27-14

 

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Court Has Common-Law “Interest of Justice” Authority to Modify Its Own Order and/or a Stipulation Entered Into During Litigation

In affirming Supreme Court’s modifying its own order in the interest of justice, the Third Department explained the common law power to do so.  The order concerned the terms of a stipulation entered into during litigation:

A court has the common-law authority to, in its discretion, grant relief from a judgment or order in the interest of justice, considering “‘the facts of the particular case, the equities affecting each party and others affected by the judgment or order, and the grounds for the requested relief'” … . Even if the stipulation had not merged into an order of the court, the court has the “discretionary power to relieve parties from the consequences of a stipulation effected during litigation” … . Here, Supreme Court correctly noted that it had the authority to modify its own order. Hodge v Development at Helderberg Meadows LLC, 517046, 3rd Dept 2-27-14

 

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Criteria for a Civil Contempt Finding

The Second Department, in finding defendant had violated a court order with respect to discovery (and therefore was in contempt), explained the criteria for civil contempt:

“To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order of the court, clearly expressing an unequivocal mandate, of which that party had knowledge, and that as a result of the violation a right of a party to the litigation was prejudiced” … . The movant bears the burden of proving the civil contempt by clear and convincing evidence… . DeMaio v Capozello, 2014 NY Slip Op 01291, 2nd Dept 2-26-14

 

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Unjust Enrichment Does Not Require a Wrongful Act by the One Enriched

The Second Department explained the criteria for determining a motion to dismiss for failure to state a cause of action and the elements of an unjust enrichment cause of action. Unjust enrichment does not require a wrongful act:

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … .”The essential inquiry in any action for unjust enrichment or restitution is whether … it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered … .”Unjust enrichment . . . does not require the performance of any wrongful act by the one enriched” … . “Innocent parties may frequently be unjustly enriched” … . “What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it'” … . Alan B Greenfield MD PC v Beach Imaging Holdings LLC, 2014 NY Slip Op 01285, 2nd Dept 2-26-14

 

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Stipulation of Settlement Not Unconscionable/Provision Relating to Child Support Invalid Because No Indication Parties Were Advised of the Relevant Portions of the Child Support Standards Act

The Second Department determined Supreme Court should not have vacated a stipulation of settlement as unconscionable. However, the provision in the stipulation relating to child support was invalid because it did not indicate the parties were advised of the relevant portions of the Child Support Standards Act. The court explained the criteria for unconscionability in this context:

“A stipulation of settlement which is made in open court by parties who are represented by counsel and who unequivocally agree to its terms will not be set aside absent a showing that the stipulation was tainted by mistake, fraud, duress, overreaching or unconscionability” … . As relevant here, a stipulation of settlement is unconscionable if it “is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the … judgment of any person of common sense” … . However, a stipulation of settlement is not unconscionable “simply because it might have been improvident or one-sided” … . The defendant here, as the party seeking to vacate the stipulation of partial settlement, had the burden of showing that its terms were unconscionable … . O’Hanlon v O’Hanlon, 2014 NY Slip Op 01303, 2nd Dept 2-26-14

 

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