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Custody Grant to Grandmother, Rather than Father, Okay

After mother had been found to have neglected her child, the Third Department, over a two-justice dissent, affirmed the grant of custody to grandmother, as opposed to father:

“It is fundamental that a biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an  extended period of  time  or other  extraordinary circumstances”….    The relevant factors to be considered in determining whether extraordinary circumstances exist include “‘the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role'”… .   It is the nonparent’s burden to establish extraordinary circumstances …and, when that burden is met, custody is determined based upon the child’s best interests…. Matter of Marcus CC v Erica BB…, 514433, 3rd Dept, 6-20-13

 

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Allegation Release Procured by Fraud Precluded Dismissal of Complaint

In reversing Supreme Court’s dismissal of a slip and fall complaint which was founded on plaintiff’s signing a release, the First Department determined plaintiff had sufficiently alleged the release was procured by fraud:

Under the particular facts of this case, dismissal of the causes of action against the owners at the pleading stage was premature because plaintiff has alleged facts showing that her release may have been fraudulently obtained. To make out the basic elements of a fraudulent inducement claim, a plaintiff must establish that the reliance on the false representation was justified…. Whether the plaintiff could justifiably rely on the false representation is an issue of fact…. “The question of what constitutes reasonable reliance is always nettlesome because it is so fact-intensive”…. Moreover, “[w]here fraud . . . in the procurement of a release is alleged, a motion to dismiss should be denied”….  A plaintiff’s reliance on a misrepresentation may be justified even if the plaintiff is represented by counsel … .  Gonzalez v 40 W Burnside Ave, LLC, 2013 NY Slip Op 04685, 1st Dept, 6-20-13

 

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Conversion Action Can Not Be Based Upon Funds Which Came Into Party’s Possession Lawfully (Down Payment)

In a breach of (purchase) contract action, the Second Department explained that a conversion cause of action could not be based upon the down payment in seller’s possession, and an unjust enrichment cause of action could not be based on the same facts as the breach of contract cause of action:

The Supreme Court properly granted that branch of Smith’s motion which was for summary judgment dismissing the cause of action alleging conversion, since he was rightfully in possession of the down payment …. “Where one is rightfully in possession of property, one’s continued custody of the property and refusal to deliver it on demand of the owner until the owner proves his [or her] right to it does not constitute a conversion”…. The Supreme Court also properly granted that branch of the motion which was for summary judgment dismissing the cause of action alleging unjust enrichment as duplicative of the breach of contract cause of action….  Green Complex, Inc v Smith, 2013 NY Slip Op 04575, 2nd Dept, 6-19-13

 

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Legal Malpractice Action Based Upon Course of Action Taken in Immigration Proceedings Reinstated

In a full-fledged opinion by Justice Manzanet-Daniels, the First Department reinstated a cause of action for legal malpractice in an immigration case.  The complaint alleged a law firm followed an unreasonable course of action in pursuing plaintiff’s application for adjustment of immigration status which led to her removal:

Given plaintiff’s allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application …. Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal…. Plaintiff’s unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants’ malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in plaintiff’s position can apply for admission if more than ten years have passed from the date of the alien’s last departure from the United States. Delgado v Bretz & Coven, LLP, 2013 NY Slip Op 04720, 1st Dept, 6-20-13

 

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Alleged Failure to Secure Mirror Which Fell During Removal Required Jury Charge on “Falling Objects” Theory

The Second Department determined Supreme Court erred when it did not charge the jury with Labor Law 240(1) as it applies to falling objects.  The plaintiff was injured when removing a mirror from the ceiling of a shower stall:

…[T]he trial court erred in failing to charge the jury in connection with Labor Law § 240(1) as it applies to falling objects, such as the mirror in this case. “[L]iability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell'”…. Moreover, whether the statute applies in a falling object case “does not . . . depend upon whether the object has hit the worker” but “whether the harm flows directly from the application of the force of gravity to the object”….  Here, the plaintiff contended that the accident occurred not only due to the wobbly ladder, but also because the mirror was not properly secured during the removal process, thus causing it to fall. While the object that fell was to be removed as part of the project, the location in which that item was situated and the lack of any device to protect the worker directly below it from a clear risk of injury raise a factual issue as to whether the object required securing for the purposes of the undertaking… .  Saber v 69th Tenants Corp, 2013 NY Slip Op 04591, 2nd Dept, 6-19-13

 

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Dismissal of Labor Law 240, 241 and 200 Actions

In affirming the dismissal of Labor Law causes of action against a defendant who was not an owner, contractor or statutory agent, and who did not supervise or control work performance, the Second Department explained the relevant principles:

Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law §§ 240[1], 241[6];…). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured…. Similarly, where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 or pursuant to the principles of common-law negligence unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work .   Medina v RM Resources, 2013 NY Slip Op 04582, 2nd Dept, 6-19-13

 

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Town Law Applies to Fire District Election

The Second Department explained that the Town Law, not the Election Law, controls in a fire district election.  The Town Law, unlike the Election Law, does not require that a voter whose registration status cannot be immediately verified provide an affidavit he or she is duly registered to vote. The issue was important because the fire commissioner election was won by one vote and the voter whose status could not be immediately verified did not provide an affidavit:

Town Law § 175-a requires voters in fire district elections to be duly registered to vote (see Town Law § 175-a). However, Town Law § 175-a does not require a voter whose voter registration status cannot be immediately verified to provide an affidavit stating that he or she is duly registered to vote. The Election Law, in contrast, does contain such a requirement (see Election Law § 8-302[e][ii]). Specific Election Law provisions, however, do not apply to fire district elections unless the Town Law makes them specifically applicable …. The Town Law does not reference Election Law § 8-302 in its provisions governing fire district elections, and, as such, the affidavit required under that statute was not required here.  Matter of Buechele v Fairview Fire Dist, 2013 NY Slip Op 04603, 2nd Dept, 6-19-13

 

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Preclusion Proper Remedy for Failure to Comply with Discovery Deadlines and Requests

The Second Department determined the failure to comply with discovery deadlines and provide good faith responses to discovery requests justified the preclusion of evidence:

“The failure to comply with deadlines and provide good-faith responses to discovery demands impairs the efficient functioning of the courts and the adjudication of claims’”… . The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court…. Here, the plaintiff made a clear showing that the defendants failed to comply with the compliance conference order …. Which required them to respond to certain requests made in the plaintiff’s supplemental notice of demand for production of documents …, since the defendants did not provide meaningful responses to those demands (see CPLR 3126[3];…). Further, the defendants’ willful and contumacious conduct in failing to meaningfully respond to those demands was reasonably inferred from the defendants’ repeated failures to respond to the plaintiff’s demands and the court’s compliance conference order without a reasonable excuse…. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting evidence at trial with respect to those items … .  HR Prince, Inc v Elite Envtl Sys, Inc, 2013 NY Slip Op 04576, 2nd Dept, 6-19-13

 

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Text Messages Authenticated Because They “Made No Sense” Unless Defendant Sent Them

The Second Department determined the content of text messages was admissible (i.e., authenticated) because the messages “made no sense” unless sent by the defendant:

…[T]he text messages from the defendant to the complainant were properly admitted into evidence. Since the content of the text messages “made no sense unless [they were] sent by defendant” …, the text messages themselves were sufficient to authenticate that they were sent by the defendant … .  People v Green, 2013 NY slip Op 04623, 2nd Dept, 6-19-13

 

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Anonymous 911 Call Admitted Under Excited Utterance and Present Sense Impression Hearsay Exceptions

The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation:

The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication…. Contrary to the defendant’s contention, the recording was also properly admissible as a present sense impression, since the caller’s statements were sufficiently contemporaneous … and were corroborated by the evidence adduced at trial…. Additionally, the admission of the recording did not violate the defendant’s right to confrontation. The call was nontestimonial in nature, since its primary purpose was to obtain an emergency response to the shooting….  People v Dockery, 2013 NY Slip Op 04621, 2nd Dept, 6-19-13

 

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