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Failure to Serve Complaint Upon Demand Required Dismissal of the Action

The Fourth Department determined defendant’s motion to dismiss the action based upon plaintiff’s failure to serve a complaint after a demand should have been granted:

“To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” … . Here, plaintiff failed to meet her burden with respect to either prong of that test.  Concerning the first part of the test, plaintiff asserted that she delayed in filing the complaint because she did not receive defendant’s demand for the complaint.  In our view, that excuse is not reasonable… .  Service of the demand for the complaint was complete upon – mailing (see CPLR 2103 [b] [2]), and defendant’s submission in support of its motion of a proper affidavit of service of the demand entitled it to the presumption that a proper mailing occurred … .  We agree with defendant that plaintiff’s mere denial of receipt of the demand was insufficient to rebut that presumption … .  Even assuming, arguendo, that nonreceipt of the demand was a reasonable excuse, we conclude that plaintiff failed to establish a meritorious cause of action with a verified complaint or an affidavit of merit, and thus dismissal of the action is required… . Dunlop v Saint Leo the Great, RC Church, 865, 4th Dept 9-27-13

 

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Proof Requirements Re: Whether An Account Is Entirely Marital Property Explained

The Fourth Department explained the proof requirements where the defendant claimed the entire amount in a deferred compensation account should not have been deemed marital property:

According to defendant, the court improperly presumed that all of the funds in that account accumulated during the marriage, and he therefore contends that we should remit the matter to Supreme Court to determine the “marital share” of that account as distinguished from his “separate property share.”  There is no merit to that contention. Pursuant to a statutory presumption, “all property, unless clearly separate, is deemed marital property,” and the burden rests with the titled spouse to rebut that presumption … . Domestic Relations Law § 236 [B] [1] [c]; [d]).  “The party seeking to rebut that presumption must adequately trace the source of the funds” …; otherwise, the court may properly treat the funds as marital property … .  Here, it does not appear from the record that defendant offered any evidence establishing the amounts he contributed to his deferred compensation account before or during the marriage. Thus, he failed to meet his burden of establishing that any of the funds in that account are separate property, and we therefore conclude that the court properly presumed that the entire account constitutes marital property subject to equitable distribution. Zufall v Zufall, 887, 4th Dept 9-27-13

 

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Doctrine of Equitable Estoppel Does Not Apply When Biological Mother Opposes Paternity Petition

In affirming Family Court’s dismissal of a paternity petition, the Fourth Department explained that the doctrine of equitable estoppel, urged to bar the mother from denying petitioner is the father of the child, did not apply:

“[T]he Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some control over the child with the parent’s consent” … .  It is well settled “that parentage under New York law derives from biology or adoption” …, and that “Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in [custody situations] otherwise fraught with the risk of ‘disruptive . . . battles’ . . . over parentage as a prelude to further potential combat over custody and visitation” … .  As the Court of Appeals has stated, “any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent” … .  Matter of White v Wilcox, 903, 4th Dept 9-27-13

 

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Cognizable Counterclaim for Breach of Domestic Partnership Stated

In finding defendant had stated a legally cognizable counterclaim for breach of a domestic partnership agreement, the Fourth Department explained:

With respect to domestic partnership agreements, “New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together . . . , provided only that illicit sexual relations were not ‘part of the consideration of the contract’ ” … .  Additionally, there is no statutory requirement that such a contract be in writing … .  We conclude that here defendant sufficiently pleaded counterclaims for breach of a domestic partnership agreement and that the court therefore erred in dismissing the fourth and fifth counterclaims … . Ramos v Hughes, 866, 4th Dept 9-27-13

 

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Neglect Finding Based on Children’s Exposure to Bloody Domestic Violence Affirmed’ Requirements for Admission of Police Reports Explained

In affirming Family Court’s finding of neglect based upon the children’s exposure to bloody violence involving the mother and her boyfriend, the Fourth Department noted that police reports should not have been admitted in evidence because they were not properly certified:

The mother correctly contends that Family Court erred in admitting police records in evidence inasmuch as the certification attached to those records failed to comply with Family Court Act § 1046 (a) (iv).  That statute provides that where, as here, a certification is completed by a “responsible employee” rather than the head of an agency, the certification “shall be accompanied by a photocopy of a delegation of authority signed by both the head of the . . . agency and by such other employee” (emphasis added).  The language of the statute is mandatory, and it is undisputed that “the requisite delegation of authority to [the employee] was lacking” … .  We must therefore “find the admission of these records to have been in error if we are to give effect to the clear and unambiguous intention of the [l]egislature”… . Matter of Kadyn J…, 929, 4th Dept 9-27-13

 

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Fraud and Breach of Fiduciary Causes of Action Dismissed as Duplicative

The Fourth Department dismissed as duplicative causes of action sounding in fraud and breach of fiduciary duty in complaints against dentists also alleging malpractice, negligence, breach of General Business Law section 349 and 350, and failure to obtain informed consent, all based on dental treatment provided to children:

We agree with defendants that the court erred in denying those parts of their respective motions seeking dismissal of the fraud and breach of fiduciary duty causes of action, and we therefore modify the order by dismissing the first and third causes of action of the amended complaints against defendants.  “Dismissal of a fraud cause of action is required ‘[w]here [it] gives rise to damages which are not separate and distinct from those flowing from an alleged [dental] malpractice cause of action’ ” … .  Inasmuch as the damages sought by plaintiffs, including punitive damages, are the same for the fraud and dental malpractice causes of action, we conclude that the fraud cause of action must be dismissed.  We further conclude that the breach of fiduciary duty cause of action must be dismissed because it is duplicative of the malpractice cause of action … .  Both the breach of fiduciary duty cause of action and dental malpractice cause of action are based on the same facts and seek identical relief… . Matter of Small Smiles Litigation … v Forba Holdings LLC…, 996, 4th Dept 9-27-13

 

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Question of Fact Raised by Competing Expert Affidavits

The Fourth Department determined competing experts raised a question of fact about whether the post-discharge arrangements for psychiatric treatment of plaintiff’s decedent were adequate.  Plaintiff’s decedent committed suicide 16 days after he was released from defendant psychiatrist’s in-patient care:

…[P]laintiff submitted the affidavit of her unidentified expert, wherein the expert stated that the proper standard of care required that decedent, who had been prescribed multiple medications that had significant side effects, such as suicidal ideation, “be monitored closely by a psychiatrist from the point of his discharge.” It is undisputed that defendant approved the discharge without ensuring that decedent had a psychiatrist who could treat him. Additionally, defendant acknowledged at her deposition that decedent required psychiatric care upon discharge, but testified that it was not her responsibility to arrange for decedent’s post-discharge care and that this responsibility was “customarily [within] the purview of the social worker.”  Similarly, defendant’s expert stated in his affidavit that it was within the standard of care to delegate to a licensed social worker the task of arranging for post-discharge care. Plaintiff’s expert, however, disagreed, stating that “delegating the task to a social worker without insuring that the task was completed is a . . . deviation from the standard of care.”  We conclude that the conflicting opinions of the experts raise an issue of fact for trial… .  Mazella… v Beals…and Mashinik, 931, 4th Dept 9-27-13

 

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Storm in Progress Doctrine Warranted Summary Judgment to Defendant in Slip and Fall Case

In reversing Supreme Court, the Fourth Department determined the “storm in progress” doctrine warranted summary judgment to the defendant in a slip and fall case.  In addition, the Fourth Department determined the plaintiff failed to raise a question of fact about whether the defendant created the dangerous condition, noting that the failure to remove all the ice and snow and the failure to sand or salt a sidewalk does not constitute exacerbation of a dangerous condition.  With respect to the “storm in progress” doctrine, the Court wrote:

We conclude that the evidence submitted by defendant in support of his motion, including an affidavit from his expert meteorologist and the weather reports upon which that expert relied, established as a matter of law that there was a storm in progress at the time of the accident … and, thus, that defendant had no duty to remove the snow and ice “until a reasonable time ha[d] elapsed after cessation of the storm” ….  The accident occurred at approximately 8:45 a.m. on December 31, 2008, when plaintiff exited defendant’s store in the City of Rochester.  According to defendant’s expert meteorologist, a snowstorm began in the Rochester area late in the evening on December 30, 2008, and continued into the next day.  At 4:15 a.m. on December 31, the National Weather Service issued a “winter weather advisory” for the Rochester area and, two hours later, the advisory was upgraded to a “winter storm warning.”  More than 11 inches of snow accumulated in Rochester on December 31, which was a record for that date, and most of that snow fell during the early morning hours.  Indeed, plaintiff acknowledged during her deposition that it was snowing on the morning in question as she drove to the store, and that testimony was consistent with the testimony of defendant’s wife, among other witnesses. Glover v Botsford…, 959, 4th Dept 9-27-13

 

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Business Not Liable for Slip and Fall on Abutting Icy Sidewalk/”Special Use” Doctrine Explained

The Fourth Department determined the defendant funeral home could not be held liable for the plaintiff’s fall on an icy sidewalk in front of the home.  There was no statute or ordinance imposing liability on the abutting landowner (as opposed to the municipality), the funeral home did not derive a special use from the sidewalk, and the funeral home did not create or exacerbate the dangerous condition. In explaining the “special use” doctrine, the court wrote:

Under the special use doctrine, a landowner whose property abuts a public sidewalk may be liable for injuries that are caused by a defect in the sidewalk when the municipality has given the landowner permission to “interfere with a street solely for private use and convenience in no way connected with the public use” and the landowner fails to maintain the sidewalk in a reasonably safe condition … .  “A special use is typically characterized by the installation of some object in the sidewalk or street or some variance in the construction thereof” … . Here, defendants established that the sidewalk was unencumbered by the installation of any objects or by other variances in construction, and plaintiff submitted no evidence that “the sidewalk was constructed in a special manner for the benefit of the abutting owner or occupier”… . Panzica v Fantauzzi…, 863, 4th Dept 9-27-13

 

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No Appeal Lies from an Order Entered Upon a Default

The Fourth Department noted that no appeal lies from an order entered upon a default. The only remedy is a motion to vacate the default order:

Plaintiff appeals from an order granting the respective motion and cross motions of defendants seeking summary judgment dismissing the second amended complaint against them.  It is undisputed that plaintiff failed to oppose the motion and cross motions or to appear on the return date thereof, and thus we deem the order to be entered upon plaintiff’s default… . We therefore dismiss the appeal from the order inasmuch as no appeal lies from an order entered on default … .  The fact that Supreme Court, upon plaintiff’s default, granted the motion and cross motions on the merits … is of no moment inasmuch as no appeal lies from an order entered on default.  “[I]t is not inconsistent to determine both that plaintiff[ is] in default and that defendants are entitled to summary judgment on the merits.  Plaintiff[’s] remedy is to move to vacate the default [order]”… .  Britt…v Buffalo Municipal Housing Authority…, 977, 4th Dept 9-27-13

 

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