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A QUESTION OF FACT WHETHER THE PARTIES AGREED TO ARBITRATE THE DISPUTE REQUIRES A FRAMED-ISSUE HEARING; THE PROPER PROCEDURE IF ARBITRATION IS REQUIRED IS TO STAY THE UNDERLYING SUIT, NOT DISMISS IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1)  there was a question of fact whether the parties agreed to arbitrate the dispute, requiring a framed-issue hearing; and (2) arbitration is not a defense to an action; so where arbitration is required the underlying action is stayed, not dismissed:

… [Q]uestions of fact exist as to whether the parties agreed to arbitrate the instant dispute, which questions require a hearing (see CPLR 7503[a] …). We therefore remit the matter … for a framed-issue hearing, and thereafter, a new determination of that branch of [the] motion which was pursuant to CPLR 7503 to compel arbitration.

… Supreme Court should have denied [the] motion which was pursuant to CPLR 3211(a)(1) to dismiss the … complaint based upon the arbitration agreement. “An agreement to arbitrate is not a defense to an action,” and “[t]hus, it may not be the basis for a motion to dismiss” … . The proper remedy, should a valid agreement to arbitrate exist, is an order compelling arbitration, which operates to stay the action (see CPLR 7503[a] …). Ferarro v East Coast Dormer, Inc., 2022 NY Slip Op 05679, Second Dept 10-12-22

Practice Point: If there is a question of fact whether the parties agreed to arbitrate a dispute, a framed-issue hearing is required. If there is a valid agreement to arbitrate, the underlying action should be stayed pending the arbitration, not dismissed.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE; THE AFFIDAVIT, THEREFORE, DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert affidavit in this medical malpractice action was conclusory and speculative, and therefore did not raise a question of fact:

The plaintiff submitted the affidavit of her expert, a physician board certified in vascular surgery, who agreed with [defendant} Mansouri’s plan to perform right femoral popliteal bypass surgery. The plaintiff’s expert further opined, however, that Mansouri departed from the accepted standard of care by not choosing a different vessel once he found the popliteal artery to be diseased with plaque. The expert’s affidavit was conclusory and speculative. While the expert opined that Mansouri should have used a different vessel, he failed to specify which vessel should have been used … . For that same reason, the assertion by the plaintiff’s expert that “the vessel should have been bypassed more distally” was conclusory and speculative. Moreover, the opinion of the plaintiff’s expert that Mansouri deviated from good and accepted medical practice by failing to verify that the plaintiff had sufficient perfusion after the surgery is unsupported by competent evidence … . Coffey v Mansouri, 2022 NY Slip Op 05678, Second Dept 10-12-22

Practice Point: The plaintiff’s expert’s affidavit in this medical malpractice case was deemed speculative, conclusory and unsupported by competent evidence. Defendants’ motion for summary judgment should have been granted.

 

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THE AFFIDAVITS SUBMITTED BY PLAINTIFF BANK IN THIS FORECLOSURE ACTION FAILED TO DEMONSTRATE DEFENDANTS’ DEFAULT AND PLAINTIFF’S COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISIONS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank in this foreclosure action did not present sufficient proof of defendants’ default and plaintiff’s compliance with the notice-of-default requirements of RPAPL 1304:

… [T]he plaintiff failed to establish, prima facie, the defendants’ default in payment by submitting the affidavit of Brian Nwabaka, an employee of its loan servicer, Bayview Loan Servicing, LLC (hereinafter Bayview). Nwabaka averred that, based upon his review of unspecified business records, the defendants defaulted in making monthly payments in October 2008. However, Nwabaka did not aver that he had personal knowledge of the defendants’ alleged default in payment. Moreover, Nwabaka failed to identify which records he relied on to assert a default in payment, and the notice of default annexed to Nwabaka’s affidavit was insufficient to establish the alleged default in payment … .

… [T]he plaintiff submitted, inter alia, the affidavits of Nwabaka and Rosalind Carroll, document coordinator for Bayview, each of whom averred that the 90-day notices were sent by certified and first-class mail. However, neither Nwabaka nor Carroll attached any documents showing proof of mailing by first-class mail, nor did they aver that they had personal knowledge of the purported mailings or were familiar with the mailing practices and procedures of Bayview … . Although Nwabaka attested to his familiarity with the mailing practices and procedures of Countrywide Home Loan, the prior loan servicer, he did not aver to familiarity with the mailing practices and procedures of Bayview, which purportedly sent the 90-day notices. Bank of N.Y. Mellon v Mannino, 2022 NY Slip Op 05675, Second Dept 10-12-22

Practice Point: Yet again the affidavits offered by plaintiff-bank in a foreclosure action were not sufficient to demonstrate defendants’ default or plaintiff’s compliance with the notice-of-default requirements of RPAPL 1304.

 

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PLAINTIFF BICYCLIST STRUCK THE DOOR OF DEFENDANT’S VAN AFTER DEFENDANT HAD OPENED THE DOOR; DEFENDANT RAISED QUESTIONS OF FACT ABOUT WHETHER HE HAD OPENED THE DOOR SAFELY AND WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED AND DEFENDANT’S COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bicyclist’s motion for summary judgment in this traffic accident case should not have been granted. Plaintiff alleged defendant, Stewart, opened the door of his van and plaintiff could not avoid striking the door. Stewart raised questions of fact about whether he was negligent and whether plaintiff was comparatively negligent:

The assertions made in Stewart’s affidavit, if credited, would support a finding that the plaintiff was riding his bicycle close to the parked vehicles, at a relatively high rate of speed, and possibly under the influence of alcohol, and he failed to perceive and avoid the van door, which had been open for as long as five seconds … .

… Stewart averred that, before opening the van door, he looked in his side-view mirror, where he was able to see the entire northbound lane for approximately 200 feet behind him, and he saw nothing approaching. Approximately five seconds later, the plaintiff’s bicycle collided with the van door. These averments were sufficient to raise a triable issue of fact as to whether Stewart failed to see what, by the reasonable use of his senses, he should have seen, and whether he opened the van door when it was not reasonably safe to do so … . Tucubal v National Express Tr. Corp., 2022 NY Slip Op 05731, Second Dept 10-12-22

Practice Point: In a traffic accident case, at the summary judgment stage, if defendant raises questions of fact about whether he/she was negligent and whether plaintiff was negligent, summary judgment should not be granted to plaintiff and the comparative negligence affirmative defense should not be dismissed.

 

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IN A CONSTRUCTION CONTRACT TRIAL, IT IS IMPROPER TO DETERMINE ADDITIONAL LABOR COST DUE TO DELAY BY USING A DEFENDANT’S PRECONTRACT ESTIMATE OF LABOR COST (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this construction contract case, determined the labor cost associated with a delay could not be determined by using the defendant’s precontract estimate of what its labor cost would be:

The trial court should not have awarded damages for additional labor costs due to defendants’ delays in the construction project. In general, it is impermissible to calculate delay damages for additional labor costs based on a comparison of the contractor’s precontract estimate of what its labor cost would be and what it claimed its labor cost actually turned out to be … . Nevertheless, in calculating the additional labor costs that plaintiff incurred from defendants’ delays, plaintiff’s expert improperly used plaintiff’s pre-bid estimate of the project’s expected labor costs, and Supreme Court erred in basing the award on this improper method of calculation. Five Star Elec. Corp. v A.J. Pegno Constr. Co., Inc./Tully Constr. Co., Inc.,2022 NY Slip Op 05659, First Dept 10-11-22

Practice Point: Here in this construction-contract trial, plaintiff’s expert should not have calculated the additional labor cost due to delay by using the defendant’s precontract labor cost estimate.

 

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THE PHRASE “CONSUMMATION OF THE ANTICIPATED MARRIAGE” IN THE PRENUPTIAL AGREEMENT, A CONDITION PRECEDENT, MEANT THE MARRIAGE CEREMONY, NOT SEXUAL RELATIONS; THE WIFE’S ARGUMENT THAT THE PRENUPTIAL AGREEMENT COULD NOT BE ENFORCED BECAUSE THE COUPLE NEVER HAD SEXUAL RELATIONS WAS REJECTED BY THE APPELLATE COURT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the phrase “consummation of the anticipated marriage” in the prenuptial agreement meant the marriage ceremony, not sexual relations. In these divorce proceedings, the wife argued the prenuptial agreement was unenforceable because the couple never had sexual relations and “consummation” of the marriage was a condition precedent to the prenuptial agreement:

While the word “consummation” connotes sexual relations in certain contexts, such as annulment proceedings, that is not the only meaning of the word, which may simply mean achieve or fulfill (see Black’s Law Dictionary [11th ed 2019]). The plain meaning of “consummation,” in the context of the section titled “Marriage — a Condition Precedent and Effective Date” and defining the effective date of agreement as the date of the parties’ marriage, is consummation or fulfillment of the parties’ intention to enter into a valid “marriage.” Reading the contract as a whole, this interpretation of the section effectuates the parties’ expressed intention to fix their respective rights accruing upon marriage and to avoid unnecessary and intrusive litigation in the event of divorce, and sets an ascertainable date for determining the effectiveness and enforceability of the prenuptial agreement.

In contrast, accepting the wife’s position would render the parties’ respective rights uncertain and require the court to conduct a highly intrusive hearing into the parties’ intimate relations, which is both contrary to the parties’ stated intention and impractical. Fort v Haar, 2022 NY Slip Op 05660, First Dept 10-11-22

Practice Point: The condition precedent to the prenuptial agreement was the “consummation” of the marriage. The wife argued the agreement was unenforceable because the couple never had sexual relations. The appellate court found that the word “consummation” referred to the marriage ceremony, not sexual relations, and the agreement was therefore enforceable.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DECIDE VISITATION ISSUES TO A MENTAL HEALTH PROFESSIONAL; THE PROPER PROCEDURE FOR MODIFYING VISITATION ONCE FATHER HAS GAINED INSIGHT INTO THE CHILD’S NEEDS WAS EXPLAINED (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to decide visitation issues to a mental health professional:

… [T]he court improperly delegated to a mental health professional its authority to determine issues involving the child’s best interests — namely, when visits could resume and whether they should be supervised … . Accordingly, we modify to delete that provision of the order only. Upon an application to resume the father’s visits with the child, the applicant shall have the burden to demonstrate changed circumstances and that the modification requested is in the child’s best interests … , at which time the court may consider evidence that includes, but is not limited to, the testimony of a mental health expert about whether the father has gained insight into the child’s medical and emotional needs and the impact of his behavior on the child. Matter of M.K. v H. M., 2022 NY Slip Op 05663, First Dept 10-11-22

Practice Point: Family Court cannot delegate its authority to decide visitation issues to a mental health professional. The proper procedure for allowing father’s visitation to resume was explained, i.e., an application to resume visitation demonstrating a change in circumstances followed by an evidentiary hearing, including the testimony of a mental health expert.

 

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THE PEOPLE ARE NOT REQUIRED TO HAVE THEIR WITNESSES READY FOR TRIAL IN ORDER FOR A STATEMENT OF READINESS TO BE VALID; THE MOTION TO DISMISS THE INDICTMENT ON SPEEDY-TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED; THE STATEMENTS OF READINESS WERE NOT ILLUSORY; THERE WAS A DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s speedy-trial dismissal of the indictment, over a dissent, determined County Court should not have deemed several of the prosecutor’s statements of readiness illusory because the witnesses were not ready for trial at the time the statements were made:

Prior to August 4, 2021, no adjournment was caused by the People’s failure to have their witnesses ready for trial. Rather, the matter was adjourned on those occasions due to other, older matters proceeding to trial before this case was reached. “The People are not required to contact their witnesses on every adjourned date . . . , nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid” … . To the contrary, ” ‘[p]ostreadiness delay may be charge[able] to the People when the delay is attributable to their inaction and directly implicates their ability to proceed to trial’ ” … . Here, although the time after the People withdrew their statement of readiness was properly charged to them, there was no prior delay attributable to the People’s inaction. Consequently, the prior statements of readiness were not illusory … . People v Hill, 2022 NY Slip Op 05626, Fourth Dept 10-7-22

Practice Point: Here the prosecutor acknowledged the trial witnesses had not be contacted at the time statements of readiness were made because other trials were scheduled before the trial in this case. No delay was attributable to the People’s inaction. Therefore the statements of readiness should not have been deemed illusory and the indictment should not have been dismissed on speedy-trial grounds.

 

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THE DETERIORATION OF THE RELATIONSHIP BETWEEN FATHER AND MOTHER WAS A SUFFICIENT CHANGE IN CIRCUMSTANCES TO WARRANT AN INQUIRY RE: FATHER’S PETITION FOR A MODIFICATION OF CUSTODY; AFTER CONSIDERING THE MERITS, THE APPELLATE COURT AWARDED SOLE CUSTODY TO FATHER (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstance (deterioration of the relationship with mother, inability to communicate) sufficient to warrant an inquiry into whether the joint custody arrangement should be modified, and the record supported awarding father sole custody:

… [T]he court had previously awarded joint custody to the parties on the basis that communications between them had “improved and the two were working together more than ever before, the results of which were positive for [the subject child].” However, the evidence at the hearing established that, after the initial custody award was entered, the parties reverted to ” ‘an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances’ ” … . …

… [W]e conclude that it is in the child’s best interests to award the father sole custody. Although the parties have shared alternating week custody since the entry of the prior custody order, the evidence at the hearing established that the father “provided a more stable environment for the child and was better able to nurture the child” … . The evidence further established that the mother made a concerted effort to interfere with the father’s contact with the child by, inter alia, disparaging him to educational and medical professionals, which raises a strong probability that the mother ” ‘is unfit to act as custodial parent’ ” … and warrants the grant of sole custody to the father…. . Matter of Johnson v Johnson, 2022 NY Slip Op 05651, Fourth Dept 10-7-22

Practice Point: A deterioration of the relationship between father and mother was a sufficient change in circumstances to warrant an inquiry re: father’s petition for a modification of custody. The record was sufficient for the appellate court to determined sole custody should be awarded to father.

 

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FATHER WAS NOT SERVED WITH THE ORDER OF FACT-FINDING AND DISPOSITION IN THE MANNER PRESCRIBED BY FAMILY COURT ACT 1113 (FATHER WAS SERVED BY EMAIL) AND THEREFORE THE 30-DAY APPEAL DEADLINE DID NOT APPLY; FATHER’S STRIKING THE 14-YEAR-OLD CHILD ONCE DURING A MULTI-PERSON MELEE AFTER THE CHILD BROKE THE WINDOW OF FATHER’S CAR WITH A ROCK DID NOT CONSTITUTE NEGLECT (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined: (1) Family Court did not follow the statutory procedure for serving father with the order of fact-finding and disposition and, therefore, father’s appeal was timely; and (2) father’s striking the child once during a multi-person melee, after the child threw a rock at father’s car, did not constitute neglect:

… “[T]here is no evidence in the record that the father was served with the order of fact-finding and disposition by a party or the child’s attorney, that he received the order in court, or that the Family Court mailed the order to the father” … . Instead, despite using a form order that provided typewritten check boxes for the two methods of service by the court mentioned in the statute (i.e., in court or by mail) … , the court here crossed out the word “mailed” and edited the form to indicate that the order was emailed to, among others, the father’s attorney. The statute, however, does not provide for service by the court through email or any other electronic means … . … Inasmuch as the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there is no indication that he was served by any of the methods authorized by the statute, we conclude that the time to take an appeal did not begin to run and that it cannot be said that the father’s appeal is untimely … .* * *

 … [W]e conclude that, “[g]iven the age of the subject child, the provocation, and the dynamics of the incident, the [father’s] act against [the child] did not constitute neglect” … . The record establishes that, during the course of a multi-person melee that included the 15-year-old sister beating up the 18-year-old daughter of the father’s girlfriend, the 14-year-old child threw a rock at the vehicle causing the window to break, to which provocation the father instantly reacted by striking the child once either in the face or the back of the head … . Petitioner presented no evidence that the child sustained any injury or required medical treatment as a result of the single strike by the father during the altercation, and the police who investigated the incident did not file any charges … . Matter of Grayson S. (Thomas S.), 2022 NY Slip Op 05649, Fourth Dept 10-7-22

Practice Point: Here father was served with the order of fact-finding and disposition by email, a method not prescribed by Family Court Act 1113. Therefore the 30-day time limit for bringing an appeal did not apply and father’s appeal was timely. Father struck the 14-year-old child once during a multi-person melee after the child broke the window of father’s car with a rock. Father’s striking the child, which did not cause injury, did not constitute neglect.

 

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