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PETITION SEEKING TRANSFER OF REAL PROPERTY FROM DECEDENT TO PETITIONER BY REFORMATION OF THE DEED OR A CONSTRUCTIVE TRUST, AS WELL AS THE DISTRIBUTION OF TRUST ASSETS TO DECEDENT’S GRANDCHILDREN, AS OPPOSED TO DECEDENT’S SURVIVING DESCENDANTS, PROPERLY DENIED (THIRD DEPT).

The Third Department determined Surrogate’s Court properly denied the petition which sought proceeds from the sale of real property in decedent’s name and a distribution from a trust for the educational expenses for decedent’s grandchildren:

According to the petition, petitioner had contributed funds to purchase the lots and paid all expenses associated therewith. Petitioner requested either reformation of the deeds or the imposition of a constructive trust. In the second proceeding, petitioner sought a decree authorizing a distribution from decedent’s testamentary trust to pay for the educational expenses of the grandchildren. …

[Re: reformation of the deed for the real property,] [g]iven that petitioner did not establish, or even allege, that there was fraud involved, she failed to establish unilateral mistake where the showing of fraud is required … . To claim that there was mutual mistake, it must be established that “the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . Here, petitioner failed to show that there was an oral agreement that the vacant lots would be owned as tenants by the entirety … . …

[Re: a constructive trust for the real property,] … although there was a confidential relationship between petitioner and decedent due to their marital status, the record does not reveal that there was a promise that the two would jointly own the four vacant lots, that petitioner transferred monies to purchase the properties in reliance of that promise or that decedent’s enrichment was unjust as a result … . …

Petitioner asserts that the word “use” supports her claim that decedent intended to provide the trustees with broad discretion that allows the distribution of the trust to be used for the grandchildren’s educational expenses. However, when gleaning decedent’s intent from the entirety of the will, the word “use” does not give unbridled discretion to the trustees to distribute the income for such purpose. Rather, when considering that the will provides that decedent’s descendants who survive petitioner receive the remainder of the trust at the time of her death, it may be gleaned that it was not decedent’s intent that the trust provide for the grandchildren’s educational expenses during petitioner’s lifetime … . Matter of Husisian, 2020 NY Slip Op 06188, Third Dept 10-29-20

 

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CLAIMANT’S FAILURE TO SUBMIT MEDICAL RECORDS TO THE EMPLOYER PRIOR TO THE HEARING REQUIRED PRECLUSION OF THE RECORDS; HOWEVER THE CASE SHOULD NOT HAVE BEEN CLOSED; CLAIMANT MAY REMEDY THE OMISSION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the case should not have been closed because claimant failed to provide a copy of the medical records to the employer before the hearing, but rather the case should have been marked “no further action” which allows claimant to submit the medical records:

Pursuant to 12 NYCRR 300.2 (d) (4) (iv), copies of written reports of medical experts made based on a records review to be used for reference at a hearing must be filed with the Board and submitted to all other parties three days prior to the hearing. It is uncontested that the employer was not provided a copy of the report pursuant to the regulation and, therefore, the report was properly precluded … . …

As to the Board’s decision to disallow the claim and close the case after rescinding the WCLJ’s finding of prima facie medical evidence, it should be noted that if the WCLJ [Workers’ Compensation Law Judge], in the first instance, had found that claimant had not proffered prima facie medical evidence, the WCLJ would have been required to have marked the case as “no further action” … . Claimant then would have been provided an opportunity to “submit additional information on an amended or other medical report, upon which submission the case shall be scheduled for another pre-hearing conference” … . Thus, under these circumstances, where there has been no finding by the WCLJ as to the establishment or disallowance of the claim, the Board’s decision to find no admissible evidence of a causally-related death and close the case based solely upon the rescission of the WCLJ’s finding of prima facie medical evidence was improper. Rather, the matter should now be marked as no further action, thereby providing claimant with an opportunity to proffer additional information to satisfy her burden of submitting prima facie medical evidence … . Matter of Barton v Consolidated Edison Co. of New York, Inc., 2020 NY Slip Op 06190, Third Dept 10-29-20

 

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THE BUILDING MANAGING AGENT, WHO HIRED PEREZ, THE BUILDING SUPERINTENDENT, WAS NOT OBLIGATED TO DETERMINE WHETHER PEREZ, A REGISTERED SEX OFFENDER, HAD A CRIMINAL RECORD; THE BUILDING OWNER AND MANAGING AGENT, THEREFORE, WERE NOT LIABLE UNDER A NEGLIGENT HIRING AND RETENTION THEORY OR A RESPONDEAT SUPERIOR THEORY FOR PEREZ’S SEXUAL ASSAULT ON INFANT PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the building owner, Carpenter, and managing agent, Lemle, could not be held liable for the sexual assault on infant plaintiff by Perez, the building superintendent. The managing agent, who hired Perez, was not under an obligation to determine whether Perez, a registered sex offender, had a criminal record:

Carpenter hired managing agents, who employed Perez. Lemle was the managing agent on the relevant date. However, no issue of fact exists as to whether Lemle can be held liable for Perez’s negligent hiring or retention because the record is devoid of evidence that Lemle had knowledge of Perez’s propensity to commit a violent act … . The fact that Perez was a registered sex offender does not avail plaintiffs, as, in the absence of knowledge of any facts that would cause a reasonable person to question a person’s background, an employer is under no duty to inquire whether an employee has been convicted of a crime … . The imposition of such a duty is a matter for the Legislature. There is no evidence that, prior to the incident in question, Perez ever did anything that should have indicated to his employer that he had a propensity to commit sexual abuse or any other crimes. Further, that Perez falsified identification records that he submitted for payroll purposes is of no moment, since the paperwork on its face would not have caused a reasonable person to question its veracity. Nor can Lemle be held vicariously liable for Perez’s conduct because the conduct was not in furtherance of Lemle’s business and was outside the scope of Perez’s employment … . Samoya W. v 3940 Carpenter Ave., LLC, 2020 NY Slip Op 06218, First Dept 10-29-20

 

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THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT HOLDING A HEARING; THE RECORD WAS NOT SUFFICIENT FOR DIRECT APPEAL AND THE MOTION PAPERS RAISED QUESTIONS REQUIRING A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without holding a hearing. The record was not sufficient for a direct appeal on the issue, and the motion raised ineffective assistance questions requiring a hearing:

Defendant’s motion, alleging ineffective assistance of counsel in various respects, should not have been denied on the ground that the trial record is sufficient to permit appellate review (CPL 440.10[2][b]). The trial record does not establish whether counsel’s alleged deficiencies in handling suppression and trial issues were based on legitimate trial strategy. Moreover, the motion was supported by motion counsel’s affirmation detailing his conversation with trial counsel, which raised serious questions about counsel’s performance as to several matters. Furthermore, the court improvidently exercised its discretion to the extent that it denied the motion, without granting a hearing, based on CPL 440.30(4)(d) … . As noted, motion counsel’s affirmation recounted a conversation with trial counsel that tended to support some of the ineffectiveness claims. Motion counsel also averred that trial counsel ultimately refused to submit an affirmation in support of the motion. Under the circumstances, the motion court should have granted a hearing to enable trial counsel to be subpoenaed to testify or otherwise present evidence explaining whether there were strategic or other reasons for his decisions … . People v McCray, 2020 NY Slip Op 06219, First Dept 10-29-20

 

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QUESTIONS OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous treatment applied such that the action was not barred by the statute of limitations:

… [T]he plaintiffs raised a question of fact as to whether [defendant’s] postoperative treatment of the patient, including rehabilitative therapy, wound care, and pain management, constituted a continuation of the course of treatment for the condition which originally gave rise to the alleged medical malpractice … . …

… [T]he plaintiffs raised a question of fact as to whether the [the rehabilitation center’s] postoperative treatment of the patient, which included rehabilitative therapy, wound care, and pain management treatment through January 2015, constituted a continuation of the course of treatment for the condition which originally gave rise to the alleged medical malpractice … . Wright v Southampton Hosp., 2020 NY Slip Op 06170, Second Dept 10-28-20

 

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PLAINTIFF ENTITLED TO AN EQUITABLE LIEN ON REAL PROPERTY WHICH WAS IDENTIFIED BUT NOT DESCRIBED IN THE MORTGAGE WHICH HAD BEEN ASSIGNED TO PLAINTIFF (SECOND DEPT).

The Second Department determined plaintiff bank was entitled to an equitable lien on real property. The mortgage secured by the property had been assigned to plaintiff but the mortgage did not include a description of the property:

… [T]he plaintiff commenced the instant action seeking, inter alia, an equitable mortgage on the property. The complaint noted that the mortgage failed to include a description of the property, and thus that the plaintiff’s security interest in the property was imperiled. …

“New York law allows the imposition of an equitable lien if there is an express or implied agreement that there shall be a lien on specific property” … . “While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation, it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances” … .

Here, the documentary evidence submitted by the plaintiff sufficiently established the existence of the loan, the intent that it be secured by the property, and the debtor’s obligation to satisfy the debt by a date certain … . U.S. Bank N.A. v Alleyne, 2020 NY Slip Op 06166, Second Dept 10-28-20

 

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TEN POINTS SHOULD NOT HAVE BEEN ASSESSED FOR AN OLD MINOR OFFENSE IN PRISON, DEFENDANT’S RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk level to level one, determined the 10 point assessment for unsatisfactory conduct in prison was not justified:

However, the record does not contain clear and convincing evidence to support the assessment of 10 points under risk factor 13, for “unsatisfactory” conduct while confined, based upon his conviction of the class A misdemeanor of promoting prison contraband in the second degree (Penal Law § 205.20). This conviction constituted the sole act of misconduct while confined cited by the People, and it occurred approximately four years before the SORA hearing, prior to the defendant’s transfer to State prison. Since the defendant’s misconduct was neither recent nor repeated, the assessment of points for that misdemeanor was not supported by the record … . People v Hernandez, 2020 NY Slip Op 06159, Second Dept 10-28-20

 

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER BECAUSE HE COMMITTED HIS SECOND OFFENSE BEFORE HE WAS SENTENCED FOR HIS FIRST OFFENSE (SECOND DEPT).

The Second Department determined defendant should not have been sentenced as a persistent violent felony offender:

… [T]he defendant was improperly adjudicated a persistent violent felony offender, as he committed his second violent felony offense prior to the time when he was sentenced for his first felony conviction (Penal Law § § 70.08[1], 70.04[1][b][ii]; CPL 400.16 [2]; see People v Morse, 62 NY2d 205; People v Ritorto, 125 AD3d 896; People v Cooper, 245 AD2d 569) … . People v Robinson, 2020 NY Slip Op 06151, Second Dept 10-28-20

 

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THE 90-DAY NOTICE WAS DEFECTIVE; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have dismissed pursuant to CPLR 3216 because the 90-day notice was defective:

On November 20, 2012, the Supreme Court issued a certification order which, inter alia, certified the matter for trial and directed the plaintiff to file a note of issue within 90 days. The order provided that “[i]f plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court. (CPLR 3216).” The plaintiff failed to file a note of issue, and the action was ministerially dismissed, without further notice to the parties. …

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon ‘the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the ‘default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'” … . …

The certification order, which purported to serve as a 90-day notice pursuant to CPLR 3216, was defective as it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute … . Moreover, it is evident from the record that the action was ministerially dismissed without a motion or notice to the parties, and there was no order of the court dismissing the action … . HSBC Bank USA, N.A. v Arias, 2020 NY Slip Op 06108, Second Dept 10-28-20

 

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A SUBSEQUENT DEED INCLUDING THE EASEMENT WAS A VALID CORRECTION DEED; THE STRANGER TO THE DEED RULE DID NOT APPLY BECAUSE THE DEEDS WITH THE EASEMENT CAME FROM THE SAME GRANTOR; THE EASEMENT WAS THEREFORE VALID AND DEFENDANTS SHOULD NOT HAVE BEEN ENJOINED FROM CLEARING IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a deed was correction deed which included an easement not mentioned in the prior deed. The Second Department also held that the “strange to the deed” rule did not apply because the deeds with the easement came from the same grantor. Therefore the easement was enforceable and defendants should not have been enjoined from clearing trees and other obstructions from the walkway:

… [A]lthough the 1972 deed does not use the phrase “correction deed” or similar phrases, and it does not reference the 1971 deed or the prior conveyance, the 1972 deed is a deed of correction that superseded the 1971 deed … . * * *

We disagree with the Supreme Court’s determination that the easement was void ab initio under the stranger to the deed rule … . … Since the dominant Lots … and the servient … shared a common grantor at the time the reservation was made, the stranger to the deed rule does not apply … . Garson v Tarmy, 2020 NY Slip Op 06104, Second Dept 10-28-20

 

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