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THE RECORD WAS NOT SUFFICIENT TO CONCLUDE APPELLANT IN THIS FAMILY OFFENSE PROCEEDING VALIDLY WAIVED HIS RIGHT TO COUNSEL; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court in this family offense proceeding, determined the record was insufficient to conclude the appellant had validly waived his right to counsel:

A party in a Family Court Act article 8 proceeding has the right to be represented by counsel (see Family Ct Act § 262[a][ii] …). That party, however, may waive the right to counsel, provided that the waiver is knowing, voluntary, and intelligent … . To ensure a valid waiver, the court must conduct a “searching inquiry” of that party … . While there is no rigid formula to be followed in such an inquiry, and the approach is a flexible one … , the record must demonstrate that the party “‘was aware of the dangers and disadvantages of proceeding without counsel'” … .

Here, the record is inadequate to demonstrate that the appellant validly waived his right to counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Mendez-Emmanuel v Emmanuel, 2024 NY Slip Op 01180, Second Dept 3-6-24

Practice Point: In a family offense proceeding the respondent has a right to counsel. If the record doesn’t demonstrate a valid waiver of the right to counsel, a new hearing will be ordered.

 

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THE PROOF THAT PLAINTIFF SLIPPED AND FELL AT A BUS STOP, WHERE THE CITY IS RESPONSIBLE FOR KEEPING THE AREA SAFE, AS OPPOSED TO THE SIDEWALK ABUTTING DEFENDANT’S PROPERTY, WHERE DEFENDANT IS RESPONSIBLE, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although the NYC Administrative Code makes abutting property owner’s like the defendant responsible for keeping the sidewalks safe, the Code also indicates the City is responsible for keeping bus stops safe. The defendant argued plaintiff slipped and fell at a bus stop, but the Second Department did not find the evidence for that claim sufficient to warrant summary judgment:

Under Administrative Code § 7-210, an abutting property owner has a duty to maintain the public sidewalk, but the City continues to be responsible for maintaining any part of the sidewalk that is within a designated bus stop location … .

Here, the defendant failed to demonstrate, prima facie, that the area of the sidewalk where the accident occurred was within a designated bus stop location maintained by the City … . Moonilal v Roman Catholic Church of St. Mary Gate of Heaven, 2024 NY Slip Op 01172, Second Dept 3-6-24

Practice Point: Pursuant to the NYC Administrative Code, abutting property owners are responsible for keeping the sidewalk safe, but the City is responsible for keeping bus stops safe.

 

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THE PLAINTIFF IN THIS WRONGFUL DEATH ACTION AGAINST DEFENDANT NURSING HOME IS THE DECEDENT’S DAUGHTER AND HAD SIGNED THE ADMISSION AGREEMENT AS THE “RESPONSIBLE PARTY;” THE LANGUAGE OF THE AGREEMENT DID NOT CREATE AN AGENCY RELATIONSHIP BETWEEN PLAINTIFF AND HER MOTHER; THE ARBITRATION CLAUSE IN THE ADMISSION AGREEMENT COULD NOT, THEREFORE, BE ENFORCED BY THE NURSING HOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant nursing home’s (the Facility’s) motion to compel arbitration of the wrongful death action should not have been granted. The admission agreement had been signed by plaintiff, not the decedent (the resident of the nursing home). The admission agreement referred to plaintiff as the “responsible party” who was “primarily responsible to assist the [decedent] to meet … her obligations under [the agreement].” But there was no indication the decedent agreed to have plaintiff act on her behalf:

“Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by [her or] his own acts imbue [herself or] himself with apparent authority. Rather, the existence of apparent authority depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent. Moreover, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable” … .

… [T]he Facility failed to demonstrate that it reasonably relied upon any word or action of the decedent to conclude that the plaintiff had the apparent authority to enter into the agreement or to bind the decedent to arbitration on the decedent’s behalf … . To the extent that the Facility contends that it reasonably relied upon the plaintiff’s own acts, this contention is also without merit, as an agent cannot “by [her] own acts imbue [her]self with apparent authority” … . … [T]he plaintiff’s status as the decedent’s daughter did not give rise to an agency relationship … . Lisi v New York Ctr. for Rehabilitation & Nursing, 2024 NY Slip Op 01171, Second Dept 3-6-24

Practice Point: Here decedent’s daughter signed the nursing-home admission agreement as the “responsible party.” Because there was no indication decedent agreed to have her daughter act on her behalf, the nursing home could not claim the daughter had the “apparent authority” to bind decedent to the agreement. Therefore the nursing home could not enforce the arbitration clause in the wrongful death action.

 

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THE CONDITION ATTACHED TO THE SUBDIVISION OF A LOT AND THE SALE OF ONE PARCEL BENEFITTED BOTH THE BUYER AND THE SELLER; THEREFORE THE BUYER ALONE COULD NOT WAIVE THE CONDITION WHEN IT COULD NOT BE MET; THE BUYER’S ACTION FOR SPECIFIC PERFORMANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the condition attached to the sale of a lot by decedent to plaintiff, i.e., that a single-family home be built on the lot, benefited both parties and therefore could not be waived by the plaintiff alone. Plaintiff was unable to procure a building permit but elected to proceed with the sale. The decedent cancelled the sale Plaintiff then brought an action for specific performance which Supreme Court granted:

The contract of sale between the plaintiff and the decedent for the subject property provided in a rider that it was subject to the plaintiff obtaining an as-of-right building permit to build a single-family residence. The plaintiff was subsequently unable to obtain a building permit because a covenant of conditions had never been filed to complete the process of subdividing Norman’s single parcel into the two parcels referred to as 112 Jessup Lane and 114 Jessup Lane. The plaintiff’s and the decedent’s efforts to have the covenant filed so as to complete the subdivision process failed. * * *

Generally, “the party for whose benefit a condition is inserted in an agreement may waive the condition and accept performance as is” … . “However, where the relevant circumstances reveal that the condition has been inserted for the benefit of both parties to the agreement, either party may validly cancel the contract upon failure of the condition, and the condition may be waived only by the mutual assent of both parties” … . …

Inasmuch as the building permit could only be obtained if the subdivision of the property were completed, that condition cannot be interpreted as existing solely for the benefit of the plaintiff where the decedent retained an interest in the other lot to be included in the subdivision … . D&J Realty Partners, LLC v Booth, 2024 NY Slip Op 01169, Second Dept 3-6-24

Practice Point: With respect to the sale of real property, if a condition of the sale, here the construction of a single-family residence on the lot to be sold, benefits only one party, the condition can be waived by that party. Here, however, the condition benefitted both parties and could only be waived by the consent of both.

 

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ALTHOUGH THE STATUTE OF LIMITATIONS FOR REFORMATION OF A CONTRACT BASED ON A SCRIVENER’S ERROR HAD PASSED; THE CLEAR ERROR PRODUCED AN ABSURD RESULT WHICH CANNOT BE ADOPTED OR CONDONED BY THE COURT (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Oing, determined plaintiff’s motion for summary judgment finding defendant “indemnitor” liable as guarantor of a $44 million debt should have been granted. Plaintiff argued the term “borrower,” instead of “indemnitor,” was mistakenly used to indicate the identity of the guarantor of the loan. Although the statute of limitations on the alleged “scrivener’s error” action had run, to interpret the language of the guaranty in the manner argued by defendant (i.e., “borrower” was the intended term) resulted in an absurdity, which would have rendered the loan unguaranteed:

… [A] court may correct a scrivener’s error outside of a claim for reformation of a contract in “those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part” … . In other words, a court is not “constrained to adopt an absurd phrasing in the contract merely because the statute of limitations for reformation had passed, when the error is obvious and the drafters’ intention clear” … . * * *

… [A] guaranty must be read in the context of the loan agreement and “in a manner that accords the words their ‘fair and reasonable meaning,’ and achieves ‘a practical interpretation of the expressions of the parties'” … . In other words, a “contract should not be interpreted to produce a result that is absurd, commercially unreasonable or contrary to the reasonable expectations of the parties” … . NCCMI, Inc. v Bersin Props., LLC, 2024 NY Slip Op 01161, First Dept 3-5-24

Practice Point: A clear-cut scrivener’s error in a contract which produces an absurd result the parties could not have intended will not be adopted or condoned by a court, despite the running of the statute of limitations on a contract-reformation cause of action.

 

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PETITIONER SOUGHT A TEMPORARY LICENSE PURSUANT TO RPAPL 881 TO ENTER RESPONDENT’S ADJOINING PROPERTY TO INSTALL PROTECTIONS PRIOR TO DEMOLITION WORK ON PETITIONER’S BUILDINGS; RESPONDENT WAS ENTITLED TO FULL INDEMNIFICATION FOR ANY DAMAGE (AS OPPOSED TO INDEMNIFICATION “TO THE EXTENT COVERED BY INSURANCE”) AND TO REASONABLE EXPERT’S AND ATTORNEY’S FEES (SECOND DEPT).

The First Department, modifying Supreme Court, determined the respondent adjoining property owner was entitled to unrestricted indemnification from petitioner for damage to respondent’s property plus reasonable expert’s and attorney’s fees in this action by petitioner pursuant to RPAPL 881 for a temporary license to enter respondent’s property. Petitioner was doing demolition work on petitioner’s buildings and sought the license to install protections on respondent’s property. Supreme Court should not have limited respondent’s indemnification “to the extent covered by insurance.” And Supreme Court should have awarded respondent expert’s and attorney’s fee to the extent the fees are deemed reasonable:

RPAPL 881 allows a property owner to petition for a license to enter the premises of an adjoining owner when entry is necessary for making improvements or repairs to the petitioner’s property and the adjoining owners have refused access. The statute is designed to strike a balance between the petitioner’s interest in improving its property and the harm to the adjoining property owner’s enjoyment of its property … , and it gives the motion court the discretion to craft an appropriate remedy in connection with license and access “upon such terms as justice requires” … . Since a respondent compelled to grant access under RPAPL 881 does not seek out the intrusion and does not derive any benefit from it, equity requires that the respondent should not have to bear any costs resulting from the access … .

… [T]he judgment’s indemnity provision provides indemnification for third-party damage claims only “to the extent covered by insurance,” which unreasonably fails to shift the full risk to petitioner as is appropriate under RPAPL 881. Matter of 1643 First LLC v 1645 1st Ave. LLC, 2024 NY Slip Op 01111, First Dept 2-29-24

Practice Point: When a property owner seeks a temporary license to enter an adjoining property pursuant to RPAPL 881 in connection with construction work, the adjoining property owner is entitled to full indemnification for any damage as well as reasonable expert’s and attorney’s fees incurred because of the temporary license.

 

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SUPREME COURT PROPERLY ALLOWED DEFENDANT IN THIS FORECLOSURE ACTION TO SERVE A 10-MONTHS-LATE ANSWER, CRITERIA EXPLAINED; IN ADDITION, SUPREME COURT PROPERLY DISMISSED THE FORECLOSURE ACTION AS TIME-BARRED, CRITERIA EXPLAINED (THIIRD DEPT).

The Third Department, affirming Supreme Court, in a full-fledged opinion by Justice Egan, determined the judge properly granted leave to serve a late answer raising the statute-of-limitations defense to the foreclosure action. The motion for leave to serve a late answer was made 10 months after the expiration of the time to serve an answer. The Third Department affirmed the dismissal of the complaint as time-barred.

… [D]efendant did not seek leave to serve a late answer until approximately 10 months after the expiration of his time to serve an answer, but there is no indication that the failure to serve an answer was willful. Defense counsel … attributed the delay to defendant’s unsuccessful pro se negotiations with plaintiff — of which little detail was given, but which plaintiff also notably failed to deny had occurred — after which defendant promptly sought legal assistance upon receiving plaintiff’s motion for a default judgment … . Plaintiff further offered no explanation as to how it would be prejudiced by allowing defendant to serve a late answer. * * *

As the first [foreclosure] action was dismissed for neglect to prosecute, neither CPLR 205 (a) nor CPLR 205-a afforded plaintiff a six-month grace period in which to commence this action following the termination of that action upon dismissal of plaintiff’s appeal from the 2016 order …  Supreme Court … , as a result, properly dismissed this action as time-barred. Deutsche Bank Natl. Trust Co. v Deluca, 2024 NY Slip Op 01132, Third Dept 2-29-24

Practice Point: The criteria for allowing leave to serve a late answer is explained in some depth.

Practice Point: The unique criteria for dismissal of a foreclosure action as time-barred is explained in some depth.

 

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IN A MEDICAL MALPRACTICE CASE, CONFLICTING EXPERT OPINIONS WHICH ARE EVIDENCE-BASED (I.E., NOT MERELY “CONCLUSORY”) REQUIRE DENIAL OF SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice case, determined plaintiff’s expert raised questions of fact about whether defendant surgeon failed to diagnose and treat a post-operative infection of plaintiff’s knee. Therefore, defendant’s motion for summary judgment should not have been granted. The decision is fact-specific and cannot be fairly summarized here. But the simple issue is: if experts on both sides of a med mal case come to conflicting conclusions which are evidence-based, summary judgment is inappropriate:

Based on the conflicting expert proof, plaintiff raised triable issues of fact … . Accordingly, defendants were not entitled to summary judgment. Kelly v Herzog, 2024 NY Slip Op 01137, Third Dept 2-29-24

Practice Point: In a med mal case, conflicting expert affidavits which are not “conclusory,” but rather are supported by evidence, preclude summary judgment.

 

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DENYING A MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS WAS NOT AN ABUSE OF DISCRETION DESPITE THE PRIOR GRANTING OF AN IDENTICAL MOTION BY ANOTHER DEFENDANT; HOWEVER PLAINTIFF BANK DID NOT DEMONSTRATE NEW YORK’S PERSONAL JURISDICTION OVER SEVERAL DEFENDANTS IN THIS INTERNATIONAL BANK-FRAUD AND MONEY-LAUNDERING CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt-Burke, determined the denial of a defendant’s motion to dismiss on forum-non-conveniens grounds was a proper exercise of discretion, despite the fact that the identical motion by another defendant had already been granted. The case stems from an elaborate international fraud and money-laundering scheme which allegedly resulted in the theft by hackers of $81 million from plaintiff bank. The opinion addresses forum non conveniens, long-arm “conspiracy” jurisdiction and conversion but is too complex and detailed to fairly summarize here. With respect to forum non conveniens, the court wrote:

Forum non conveniens is a common-law doctrine that presumes jurisdiction … . … [T]the initial question before this Court is whether Supreme Court had the discretion to deny the … defendants’ motion to dismiss the complaint on forum non conveniens grounds when it had already granted another defendant’s motion to dismiss under the same doctrine. We answer this question in the affirmative and find that the … defendants have not demonstrated that Supreme Court’s denial was an improvident use of discretion. * * *

… [W]e find Supreme Court’s determination to deny each defendant’s motion to dismiss on forum non conveniens grounds was not an abuse of discretion. However, this determination only represents half of our inquiry, as a finding that it was proper for Supreme Court to deny defendants’ motions to dismiss on forum non conveniens grounds does not equate to a finding that Supreme Court had personal jurisdiction over all … defendants. Indeed … , plaintiff has failed to establish personal jurisdiction over Reyes, Pineda, Capina, and Agarrado. Bangladesh Bank v Rizal Commercial Banking Corp. 2024 NY Slip Op 01112, 2-29-24

Practice Point: Whether to grant a motion to dismiss on forum non conveniens grounds is discretionary. Here the denial of the motion was not an abuse of discretion despite the prior granting of an identical motion brought by another defendant.

 

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THE ALLEGATIONS BY THE CHILDREN WERE SUFFICIENTLY CORROBORATED TO SUPPORT A FINDING FATHER COMMITTED DOMESTIC ABUSE AND THEREBY NEGLECTED THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations made by the children about father’s violence against mother were sufficiently corroborated to support a neglect finding against father:

… [A] preponderance of the evidence established that the father neglected the children by perpetrating acts of domestic violence against the mother in their presence … .. The out-of-court statement of the oldest child, Roland M., was sufficiently corroborated. “The out-of-court statements of siblings may properly be used to cross-corroborate one another” … . “However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations” … “and be independent from and consistent with the other sibling’s out-of-court statement” (Matter of Ashley G. [Eggar T.], 163 AD3d at 965). Roland M.’s statement was corroborated by the out-of-court statement of his sister, Rosalee M., that she witnessed the father drag the mother out the door and choke her. Roland M.’s statement was also corroborated by the ORT received by the petitioner, which reported that Roland M. called the authorities during the domestic violence incident, that during the incident the father strangled the mother with his hands, that Roland M. had to intervene, and that the father was being charged with strangulation in the second degree … …

… [T]he evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition … . Matter of Roland M. (Manuel M.), 2024 NY Slip Op 01011, Second Dept 2-28-24

Practice Point: The issue here was whether the domestic abuse allegations by the children were sufficiently corroborated. The Appellate Division held that they were, giving some insight into what constitutes sufficient corroboration in this context.

 

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