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Summary Judgment Can Not Be Granted Based on Affidavit By Someone with No Personal Knowledge of the Facts, Even If Factual Information Not Disputed

A mortgage foreclosure action was discontinued at the plaintiff’s request because the limited signing officer who signed the affidavit in support of plaintiff’s motion for summary judgment did not have personal knowledge of the facts.  The defendant then cross-moved for summary judgment based on the plaintiff’s papers.  In explaining that Supreme Court should not have granted summary judgment to the defendant dismissing the action, the Second Department wrote:

…[W]here a motion for summary judgment is based solely upon an affidavit of someone with no personal knowledge of the facts, that circumstance generally presents only a ground for the denial of summary judgment…, not a ground to dismiss the action. [Defendant] failed to establish grounds to dismiss the action against her with prejudice, and there is no basis in this record supporting that request for relief. Accordingly, the Supreme Court improperly granted that branch of [defendant’s] cross motion which was, in effect, to dismiss the action against her with prejudice… . GMAC Mtge LLC v Bisceglie, 2013 NY Slip Op 05878, 2nd Dept 9-18-13

 

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Denial of Parole Supported by Evidence

In reversing Supreme Court, the Second Department determined the Parole Board’s denial of parole was not arbitrary and capricious.  After noting that the 2011 amendments to Executive Law 259-c(4) did not apply retroactively, the court wrote:

…[T]he Supreme Court erred in concluding that the Parole Board’s determination was arbitrary and capricious … . Although the Parole Board’s primary focus in denying parole was the nature of the crime committed, the Parole Board also looked at the petitioner’s institutional record … . The Parole Board “need not expressly discuss each of [the statutory guidelines] in its determination” …, and it was not “required specifically to articulate every factor considered” … . Whether the Parole Board considered the proper factors and followed the proper guidelines are questions that should be assessed based on the “written determination . . . evaluated in the context of the parole hearing transcript” … . Here, the hearing transcript indicates that the Parole Board gave due consideration to a number of factors that reflected well on the petitioner, but that these factors did not outweigh those factors that militated against granting parole. Matter of Fraser v Evans, 2013 NY slip Op 05900, 2nd Dept 9-18-13

 

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Defendant Did Not Consent to Entry of Police Into His Home—the Police Accompanied a Parole Officer for the Express Purpose of Investigating a Burglary—Motion to Suppress Should Have Been Granted

The Second Department determined evidence seized from defendant’s home and statements made by the defendant should have been suppressed.  Using the authority to visit parolees, the police accompanied the parole officer to defendant’s home as part of a burglary investigation. The defendant was arrested after stolen property was noticed by the police in the home.  In determining the trial court erred when it found defendant had consented to the entry of the police into his home, the court wrote:

When the People rely on consent to justify an otherwise unlawful police intrusion, they bear the “heavy burden” of establishing that such consent was freely and voluntarily given … . “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” … . The People’s burden of proving voluntariness “cannot be discharged by showing no more than acquiescence to a claim of lawful authority” … .

We agree with the defendant that the People failed to prove that his consent to the entry into his home was voluntary. Consent is not voluntary where an officer falsely represents facts that normally establish the exercise of police authority to which a person would ordinarily yield … . Here, pursuant to the conditions of the defendant’s release to parole supervision, he was obligated to allow his parole officer to enter his home to conduct a home visit and conduct a related search of his residence. The People showed no more than the defendant’s acquiescence to this authority, which does not sustain their burden of proving that he freely and voluntarily consented to the entry by the detectives and the sergeant for the purpose of investigating the subject burglaries. People v Marcial, 2013 NY Slip Op 05920, 2nd Dept 9-18-13

 

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Agents of Property Owner Can Be Liable Under Labor Law 240(1)

In reversing a verdict after trial, the Second Department noted that the Labor Law imposes liability upon the agents of the property owner, as well as the owner and general contractor:

In addition to owners and general contractors, Labor Law § 240(1) imposes liability upon agents of the property owner who have the ability to control the activity which brought about the injury … . * * * In light of the trial evidence, the jury should have been instructed to determine whether the defendants were acting as the homeowner’s agent, with the authority to supervise and control the injured plaintiff’s work on the roof … . Accordingly, since the error was not harmless a new trial is required… . Arto v Cairo Constr Inc, 2013 NY Slip Op 05863, Second Dept 9-18-13

 

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Husband’s Contribution to Purchase of Home by Wife’s Parents Constituted a Constructive Trust

In a divorce action, the Second Department affirmed Supreme Court’s determination that the husband’s [Henn’s] contribution toward the purchase of a house constituted a constructive trust.  The parties separated before Henn moved into the home.  The wife’s [Tyree’s] parents [the Raffas] contributed some money and purchased the home for Henn and Tyree, both of whom also contributed funds toward the purchase.  In concluding Henn’s contribution constituted a constructive trust, the court wrote:

Here, the Supreme Court correctly found that the first element relevant to imposing a constructive trust was satisfied, as Henn and the Raffas were related through marriage and they pooled their resources to purchase the subject premises … . Henn satisfied the second element by demonstrating that the Raffas implicitly promised to convey the premises to him and Tyree … . He satisfied the third element, which requires a showing that he acted in reliance on the promise, by establishing that he gave $58,500 to Samuel J. Raffa, and that Samuel J. Raffa used that money to purchase the premises … . As for the fourth element, which requires a showing of unjust enrichment flowing from the breach of the promise, the evidence adduced at trial established that Henn never moved into the premises or acquired a legal interest therein. To the contrary, he and Tyree separated the very month that the premises were acquired by the Raffas, and Tyree commenced this divorce action just a few months later. The Raffas remained the sole owners of the premises, and they did not return Henn’s $58,500. In view of this evidence, there is no basis upon which to disturb the Supreme Court’s determination… . Tyree v Henn, 2013 NY Slip Op 05895, 2nd Dept 9-18-13

 

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Determination of Paternity Not in Child’s Best Interest; Mother Equitably Estopped from Seeking Paternity Determination

The Second Department determined a genetic marker test to determine appellant’s paternity was not in the best interest of the child and the mother was equitably estopped form asserting appellant’s paternity.  The appellant had not been part of the 16-year-old child’s life since the child was 18 months old and the mother had failed to appear in a paternity proceeding instituted when the child was 8 months old:

…[I]in appropriate circumstances, the doctrine of equitable estoppel may be asserted defensively by a purported biological father to prevent a child’s mother from asserting biological paternity where a genetic marker test would not be in the best interests of the child … . Here, the Family Court improvidently rejected the appellant’s equitable defense. An adverse inference may be taken against the mother for her failure to appear for the court-ordered genetic marker test in 1999, and her failure to pursue that proceeding … . Thereafter, the mother failed to commence a new proceeding for 13 years, during which time the subject child had no relationship with the appellant and lived with the mother, her current husband, and his half-siblings on the mother’s side. Accordingly, a genetic marker test is not in the best interests of the subject child, on the ground that the mother is equitably estopped from asserting the appellant’s biological paternity (see Family Ct Act § 532[a]…). Matter of Karen G v Thomas G, 2013 NY Slip Op 05901, 2nd Dept 9-18-13

 

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Motion to Suspend Child Support Properly Denied; Criteria Explained

In affirming Supreme Court’s denial of plaintiff’s motion to suspend child support, the Second Department explained the criteria for early suspension of the child support obligation:

Generally, parents have a statutory duty to continually support their children until they reach 21 years of age (see Family Ct Act § 413[1][a]…). ” However, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended'” … .

Here, contrary to the plaintiff’s contention, the Supreme Court properly denied, without a hearing, that branch of his motion which was to suspend his obligation to pay child support. The plaintiff alleges continuing conduct on the part of the defendant which, if proven, would not “rise to the level of deliberate frustration’ or active interference’ with the noncustodial parent’s visitation rights”… . Jones v Jones, 2013 NY Slip Op 05879, 2nd Dept 9-18-13

 

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Relationship of Prenuptial Agreement to Temporary Maintenance and Award of Attorneys Fees

The Second Department determined that temporary maintenance was not properly granted in light of the facts (where the prenuptial agreement did not expressly deal with the topic) and legal fees in excess of the limit in the prenuptial agreement were properly granted.  The court explained the relevant analyses as follows:

“As with all contracts, prenuptial agreements are construed in accord with the parties’ intent, which is generally gleaned from what is expressed in their writing” …. “Where a prenuptial agreement is clear and unambiguous on its face, the intent of the parties is gleaned from the four corners of the writing as a whole with a practical interpretation of the language employed so that the parties’ reasonable expectations are met” … .

Contrary to the plaintiff’s contention, the parties’ prenuptial agreement did not expressly preclude an award of temporary maintenance pendente lite, nor did the defendant expressly waive such an award under the terms of the agreement… .   On the record presented, including evidence of the defendant’s expenses, the defendant’s reasonable needs were more than adequately met. Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in directing the plaintiff to pay temporary maintenance in the sum of $1,000 per month… . * * *

Supreme Court properly awarded the defendant interim counsel fees, notwithstanding a provision in the prenuptial agreement limiting, to the sum of $10,000, the plaintiff’s obligation to pay such fees incurred by the defendant in any divorce action. Because of a strong public policy favoring the resolution of matrimonial matters on a level playing field …, the determination of whether to enforce an agreement waiving the right of either spouse to seek an award of an attorney’s fee is to be made “on a case-by-case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced” … . Here, the parties are involved in extensive litigation concerning child custody, a matter not expressly addressed in their prenuptial agreement. Moreover, the plaintiff’s net worth is more than $13 million and his monthly gross income exceeds $45,000, while the defendant has no income other than what she is receiving pursuant to the agreement. Abramson v Gavares, 2013 NY Slip Op 05861, 2nd Dept 9-18-13

 

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No Negligence In School District’s, School’s and Attending Nurse’s Care of Child Who Died After Suffering an Allergic Reaction in School

In a full-fledged opinion by Justice Eng, the Second Department determined the action brought on behalf of a child who died in school after suffering an allergic reaction was correctly dismissed with respect to the Department of Education (DOE) and should have been dismissed with respect to the school and the attending nurse who was tasked with monitoring the child at school.  The lengthy opinion deals in depth with many topics including:  the DOE’s duty, the school’s duty, the nurse’s duty, the finding that the nurse was an independent contractor as opposed to an employee, and the proximate cause issue raised by the inability to determine what caused the allergic reaction.  The child was autistic and suffered from asthma and numerous severe allergies.  The DOE developed a plan (Individualized Education Program) which involved placement of the child in a private school equipped to care for children with special needs and the provision of a nurse who was with the child continuously during the school day.  The Second Department treated all the issues (including the adequacy of the medical care provided by the nurse) exhaustively and determined no questions of fact had been raised about the negligence of any of the defendants. Begley v City of New York, 2013 NY Slip Op 05867, 2nd Dept 9-18-13

 

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Rear-End Collision Warranted Summary Judgment on Liability

In a rear-end collision case, the Second Department determined plaintiff’s motion for summary judgment on liability should have been granted:

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that the defendant’s vehicle struck his vehicle in the rear as the plaintiff’s vehicle was slowing down for traffic in front of it … . In opposition, the defendant failed to raise a triable issue of fact. “[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” … . Robayo v Aghaabdul, 2013 NY slip Op 05889, 2nd Dept 9-18-13

 

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