In the course of a decision awarding partial summary judgment to the defendant, the Third Department noted that “this Court has the authority to grant summary judgment to a nonappealing party” and did so with regard to a nonappealing defendant as well. Shree Shiv Shakti Corp… v Khalid Properties, LLC, 515810, 3rd Dept 5-30-13
The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence:
Plaintiff’s conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court’s assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff’s bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff’s disposal of the subject computer was, at the very least, grossly negligent …. Defendants established that plaintiff’s spoliation of critical evidence compromised defendants’ ability to prosecute their counterclaims … . Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Harry Wiess, Inc v Moskowitz, 2013 NY Slip Op 03927, 1st Dept, 5-30-13
The Second Department noted that the statute of limitations provisions for fraud are applied to forgery:
Contrary to the plaintiff’s contention, the statute of limitations for a fraud cause of action applies to a cause of action alleging forgery … .The statute of limitations for a fraud-based cause of action requires that the action be commenced within six years after the allegedly fraudulent act or within two years after discovery, whichever is later…. Faison v Lewis, 2013 NY Slip OP 03813, 2nd Dept, 5-29-13
After Family Court ruled it did not have jurisdiction to issue a judgment for child support arrearages, the Third Department determined that the court did in fact have jurisdiction. In a full-fledged opinion by Justice Peters, the Third Department wrote:
While “Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute” …, it is empowered “to determine applications to modify or enforce judgments and orders of support” … .In that regard, petitioner [child support collection unit] is authorized to commence violation proceedings “on behalf of persons” who receive child support pursuant to a court order … . * * *
Petitioner thus acted well within its statutory authority in commencing this proceeding to enforce a child support order that respondent had “fail[ed] to obey,” and Family Court likewise had subject matter jurisdiction to consider it… . In the Matter of Chemung County Support Collection Unit…v Greenfield, 515864, 3rd Dept, 5-30-13
The Third Department reversed Family Court’s dismissal of the biological mother’s petition for custody of a child who had been placed with her sister with the biological mother’s consent. The Third Department determined the mother’s prior consent to custody did not preclude her petition and the respondent, as a nonparent, bore the responsibility to demonstrate extraordinary circumstances warranting her custody of the child. The Third Department noted:
…[W]hile “no parent has an absolute right to custody of a child . . . it is settled law that, as between a biological parent . . . and a nonbiological parent . . ., the parent has a superior right that cannot be denied unless the nonparent can establish that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances'” … . In the Matter of Evelyn C …, 514179, 3rd Dept, 5-30-13
In reversing Family Court, the Third Department determined the imposition of separate and contradictory permanency goals violated Family Court Act 1089 [d] [2] [i]:
At the end of the hearing, Family Court continued the children’s placement and approved petitioner’s goal of reunification as to the mother only. As to the father, the court disapproved the goal of reunification, directed petitioner to commence a permanent neglect proceeding to terminate his parental rights and suspended his supervised visitation. * * *
Family Court erred by imposing separate and contradictory permanency goals on the mother and father. Upon concluding at the end of a permanency hearing that a child is not to be returned immediately to a parent, the court must determine whether the permanency goal should be approved or modified and may select among five statutory permanency goals (see Family Ct Act § 1089 [d] [2] [i]; …). These “goal[s] are listed as alternatives, with the court to choose only one. Nothing in the statute indicates that the court may select and impose on the parties two or more goals simultaneously” … . The statute contemplates the commencement of termination proceedings against a parent only when the permanency goal is “placement for adoption” (Family Ct Act § 1089 [d] [2] [i] [B]). To require such proceedings as to one parent where, as here, the permanency goal is reunification with the other parent is not only inconsistent with the statutory goals but also with the overall goal of permanent neglect proceedings, to further the children’s best interests by freeing them for adoption when positive parental relationships no longer exist … . In the Matter of Julian P, 512450, 3rd Dept, 5-30-13
In determining Supreme Court should have dismissed the negligence and fraudulent misrepresentations cause of action in a complaint based upon breach of contract, the Third Department wrote:
“[A] simple breach of contract claim is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . .[, which] legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract” …. Plaintiffs have not demonstrated any special relationship or legal duty aside from the contractual relationship…. The negligence and fraudulent misrepresentation claims are based upon the same alleged wrongful conduct as the breach of contract claim, rendering them duplicative … . Rorok v Moore’s Flatwork…, 515459, 3rd Dept, 5-30-13
In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that a defective acknowledgment on a prenuptial agreement was the type of defect that could be cured but that the notary’s affidavit was not sufficient to cure the defect. Therefore, the prenuptial agreement was invalid. The opinion includes an extensive discussion of the statutory requirements for acknowledgments and the limited circumstances in which defects can be cured. With regard to the specific defect at issue, the Court of Appeals wrote:
In the certificate of acknowledgment relating to the husband’s signature, the “to me known and known to me” phrase was inexplicably omitted, leaving only the following statement: “On the 8 [sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same.” Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective. Thus, we agree with the Appellate Division, which unanimously concluded that the certificate of acknowledgment did not conform with statutory requirements. Galetta v Galetta, No 94, CtApp, 5-30-13
In a full-fledged opinion by Judge Read (with a dissent by Judge Smith) the Court of Appeals determined that a contract provision which violated General Business Law 395-a (2) did not render the contract null and void and a private right of action pursuant to General Business Law section 349 did not lie for the violation. Section 395-a provides that a maintenance agreement covering parts and/or service can not be terminated by the party offering the agreement during the term of the agreement. The maintenance agreement at issue included a “store closure” provision which allowed the defendant to terminate the maintenance agreement in the event of closure of the store issuing the agreement. The Court assumed that the “store closure” provision violated the General Business Law but held the violation did not render the contract null and void. The Court further determined the violation did not constitute a deceptive practice within the meaning of General Business Law 349. Schlessinger…v Valspar Corporation, No 66, CtApp, 5-30-13
The defendant stopped in the roadway when she had the right of way and gestured to an on-coming driver to make a left turn in front of her. Plaintiff passed the defendant on the right and collided with the car making the turn. The Third Department determined defendant’s motion for summary judgment should not have been granted:
When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances; this duty is owed to pedestrians and other motorists and passengers as well as to the person who is being signaled … . Dolce v Sheridan, 515766, 3rd Dept, 5-30-13
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