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EQUITABLE ESTOPPEL DOCTRINE PROPERLY APPLIED TO FIND THAT THE FORMER SAME-SEX DOMESTIC PARTNER HAD STANDING TO SEEK CUSTODY AND VISITATION RE: CHILDREN BORN DURING THE RELATIONSHIP, PRESUMPTION OF LEGITIMACY RE: A CHILD CONCEIVED WHEN THE BIOLOGICAL MOTHER WAS PREVIOUSLY MARRIED WAS REBUTTED (SECOND DEPT).

The Second Department determined that Family Court properly applied the doctrine of equitable estoppel and the presumption of legitimacy was rebutted in this same-sex domestic-partner case. The biological mother (Perperis) and her domestic partner (Chimienti) were together when both children were born and the relationship lasted three years. The older of the two children was conceived when the biological mother was married, but the couple had separated before the baby was born (followed by divorce):

On March 5, 2018, Nicole Perperis, the biological mother of the two subject children, who were born, via artificial insemination, in September 2014 and May 2016, respectively, entered into a consent order of custody and parenting time (hereinafter the consent order) with her former domestic partner, Jennifer Chimienti. Pursuant to the consent order, the parties agreed to share joint custody of the children, with physical custody and final decision-making authority to Perperis. The consent order also set forth a parenting time schedule for Chimienti. The parties entered into the consent order, forgoing a hearing on the best interests of the children as to custody and parental access, upon the determination of the Family Court in an order … (hereinafter the September 2017 order), made after a hearing at which Chimienti’s standing to seek custody or visitation was contested, that Chimienti established standing, via equitable estoppel, to seek custody of or visitation with the children. …… .[W]e agree with the Family Court that … the appropriate analysis to decide whether Chimienti had standing to seek custody of and visitation with the children is to apply an equitable estoppel analysis. …

… .[W]e agree with the Family Court’s determination that, with respect to the older child, the application of an equitable estoppel analysis is not precluded by a legal presumption that the older child, who was born when Perperis was still married to her former wife, is the child of the former wife. We agree with the court’s determination that the marital presumption of legitimacy that typically applies to children born during a marriage (see Domestic Relations Law § 24[1]; Family Ct Act § 417) was rebutted by clear and convincing evidence … . Matter of Chimienti v Perperis, 2019 NY Slip Op 02866, Second Dept 4-17-19

 

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CHILD’S NAME CHANGE TO THE HYPHENATED SURNAMES OF BOTH PARENTS, WHO ARE NOT MARRIED, AFFIRMED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the petition to change the child’s last name was properly granted to the extent that the hyphenated surnames of both parents, who are not married, were assigned to the child:

The parties have joint legal custody and the mother has always had primary physical custody of the child. Because he was overseas on active military duty, the father was not present at the time of the child’s birth. Prior to the child’s birth, however, the father had strongly expressed to the mother that the child should have his surname. Nevertheless, the mother gave the child her surname, Bafumo. The father commenced this proceeding in November 2016 under Civil Rights Law article 6 to change the surname of the child from Bafumo to Weinhofer, his surname. …

A petition to change the surname of a child shall be granted as long as the opposing party does not have a reasonable objection to the proposed name change and “the interests of the [child] will be substantially promoted by the change” (Civil Rights Law § 63). Although it appears that Supreme Court rendered its determination based solely on the second element — whether the child’s interests would be substantially promoted by the name change — given that the record is sufficiently developed as to the first element — whether the mother’s objections to the father’s petition were reasonable — it is unnecessary to remit the matter for a new hearing … . That said, we find that the mother’s objections were not reasonable. Matter of Bafumo, 2019 NY Slip Op 02767, Third Dept 4-10-19

 

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BOARD’S FINDING THAT CLAIMANT FRAUDULENTLY EXAGGERATED THE EFFECTS OF HIS INJURIES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, BOARD’S DETERMINATION REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the finding that claimant fraudulently exaggerated the effects of his injuries was not supported by the record. The Board’s rulings were based upon claimant’s answering calls as a volunteer firefighter and some video surveillance footage. But there was no evidence of what activities claimant engaged in as a volunteer firefighter, and the video evidence was deemed to have been mischaracterized by the Board:

Regarding the video surveillance at a personal injury accident, the Board found that claimant exhibited no apparent difficulty or disability. In the video surveillance, claimant is observed walking around the accident scene; which is not inconsistent with his reports of injury given that he did not need an assistive device to walk but, as noted in his medical records, could walk independently with a mild antalgic gait. Furthermore, any conclusion by the Board that claimant’s movements of his neck, arms and back were inconsistent with his loss of range of motion were not supported by any medical testimony at the hearing and amount to speculation as to whether such movements were inconsistent with the degree of range of motion noted in his medical records. Again, claimant was not in need of any assistive device for his injuries and the degree to which claimant moved his neck, arm and back in the video surveillance, and whether it was inconsistent with his medical records, could not be ascertained without additional medical testimony. …

We also find that the Board mischaracterized the video surveillance depicting claimant “walking into a grocery store . . . and then bending fully at the waist to retrieve a loaf of bread.” Although claimant maintained that his daily living activities had been affected by his injuries, the video did not clearly reflect any heavy lifting or repetitive motion inconsistent with his complaints of pain. Significantly, claimant was deemed totally disabled from performing his job duties as a laborer, but not totally disabled from all activities. It is also noted that the addendum submitted … is factually inaccurate as it incorrectly indicates that claimant is seen “carrying packages” at the grocery store, but the video depicts claimant carrying only a loaf of bread. Matter of Persons v Halmar Intl., LLC, 2019 NY Slip Op 02760, Third Dept 4-11-19

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE BECAUSE THE VICTIM WAS NEARLY 17 AND NO FORCE WAS INVOLVED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a downward departure under risk level guidelines:

Here, the Board recommended a downward departure on the ground set forth in the above guidelines. Significantly, the victim was to turn 17 only two months after the incident and reported that no force was used and that she was a willing participant. Moreover, the victim had various communications with defendant on Facebook and spent time with him prior to the incident, which appears to have been their only sexual encounter. Notably, County Court declined to grant a downward departure on the basis that defendant had already benefited from the victim’s consent by obtaining a light criminal sentence. Clearly, this was not an appropriate factor to be considered under the guidelines. Therefore, under the circumstances presented, we find that defendant established by a preponderance of the evidence the existence of mitigating factors not taken into account by the guidelines and that County Court abused its discretion in denying his request for a downward departure … . Consequently, defendant’s total risk score of 90, which presumptively placed him in the risk level two classification, should be reduced by the 25 points allocable to risk factor 2 (sexual contact with victim), giving him a total risk score of 65 and placing him in the risk level one classification. People v Secor, 2019 NY Slip Op 02759, Third Dept 4-11-19

 

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DEFENDANT TRANSIT AUTHORITY DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE MOVEMENT OF THE BUS WAS UNUSUAL AND VIOLENT, PLAINTIFF-PASSENGER WAS INJURED WHEN SHE FELL ON THE BUS, TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)

The Second Department, reversing Supreme Court, determined that defendant NYC Transit Authority’s motion for summary judgment in this bus-passenger injury case should not have been granted:

According to the plaintiff, the bus stopped in a manner that caused her to fall and sustain injuries. …

In seeking summary judgment dismissing a complaint which alleges injuries to a plaintiff arising out of a fall on a bus, a common carrier has the burden of establishing, prima facie, that the stop that caused the fall was not unusual and violent … .

We disagree with the Supreme Court’s determination granting the defendant’s motion. The evidence submitted by the defendant, which included, inter alia, the deposition testimony of the plaintiff regarding her fall and the bus camera video footage of her fall, failed to eliminate triable issues of fact as to whether the movement of the bus at issue was unusual and violent … . Giordano v New York City Tr. Auth., 2019 NY Slip Op 02684, Second Dept 4-10-19

 

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MOTION FOR A JUDGMENT AS A MATTER OF LAW MADE DURING JURY SELECTION WAS PREMATURE, GRANTING THE MOTION ON SPOLIATION GROUNDS VIOLATED THE LAW OF THE CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to strike defendant’s answer on spoliation grounds in this medical malpractice and wrongful death action, made during jury selection, should not have been granted. It was not a proper motion for a judgment as a matter of law pursuant to CPLR 4401 and the ruling violated the law of the case:

During jury selection, the plaintiff made an oral application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability based on the defendant’s alleged spoliation of evidence relating to certain telemetry strips and the defendant’s failure to perform an autopsy on the decedent. In opposition, the defendant argued, among other things, that the Supreme Court had previously denied that branch of a prior motion by the plaintiff which was to strike the defendant’s answer based on the defendant’s alleged spoliation of evidence. …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the plaintiff’s oral application, which was made during jury selection, was not based on any admissions by the defendant, and the Supreme Court should not have considered the merits of the plaintiff’s application at that juncture … .

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . The doctrine forecloses reexamination of an issue previously determined by a court of coordinate jurisdiction “absent a showing of newly discovered evidence or a change in the law” … .

Here, the Supreme Court violated the doctrine of law of the case by disregarding the prior order denying that branch of the plaintiff’s earlier motion which was to strike the defendant’s answer based upon the same evidentiary issues … . Fishon v Richmond Univ. Med. Ctr., 2019 NY Slip Op 02682. Second Dept 4-10-19

 

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FALL FROM A LADDER WHICH WAS NOT SECURED, AND WHICH SHOOK AND THEN KICKED OUT FROM UNDER PLAINTIFF, ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case should have been granted:

“Although [a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1),’ liability will be imposed when the evidence shows that the subject ladder was . . . inadequately secured and that . . . the failure to secure the ladder was a substantial factor in causing the plaintiff’s injuries'” … .  Here, the plaintiff established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries … . Through his deposition testimony, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability under that statute when he testified that a carpentry foreman directed him to retrieve the subject ladder, which the plaintiff ascended without a spotter, and which shifted and shook before the bottom “kicked out,” causing him to fall  … . DeSerio v City of New York, 2019 NY Slip Op 02679, Second Dept 4-10-19

 

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ALTHOUGH DEFENDANT WAS AMBIVALENT ABOUT WHEN HE WAS SERVED, THE MOTION TO DISMISS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND, IT IS PLAINTIFF’S BURDEN TO DEMONSTRATE A DEFENDANT WAS TIMELY SERVED WITH A SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint because defendant was not timely served should have been granted. The defendant was ambivalent about when he was served and the motion was denied on that ground. However, it is the plaintiff’s burden to prove when service was made:

… [T]he defendant Malka Hayut averred that she had been served on May 12, 2016, more than 120 days after the filing of the summons and complaint, and the defendant Meir Marc Hayut (hereinafter the appellant) averred only that he “may have been served” on May 12, 2016. … [T]he Supreme Court, inter alia, denied that branch of the defendants’ renewed motion … to dismiss the complaint insofar as asserted against the appellant [Meir], on the ground that the appellant was equivocal as to whether he was timely served.

The burden of proving that personal jurisdiction was acquired over a defendant rests with the plaintiff … . Although the failure to file an affidavit of service with the court pursuant to CPLR 308(4) is generally a procedural irregularity which may be cured … , in this case, the plaintiff did not cure the defect. In the absence of evidence that the appellant was properly served, that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the appellant for lack of personal jurisdiction should have been granted … . Deb v Hayut, 2019 NY Slip Op 02676, Second Dept 4-10-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT FOR FAILURE TO PROSECUTE WITHOUT FOLLOWING THE REQUIREMENTS OF CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the judge should not have, sua sponte, dismissed the complaint for neglect to prosecute without following the procedure required by CPLR 3216:

The Supreme Court should not have, in effect, pursuant to CPLR 3216, sua sponte, dismissed the amended complaint, as the statutory preconditions to dismissal were not met … . A court cannot dismiss an action, sua sponte, pursuant to CPLR 3216(a) unless the conditions set forth in CPLR 3216(b) have been met, including the requirement that: “[t]he court or party seeking such relief . . . shall have served a written demand . . . requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating 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” (CPLR 3216[b][3] [emphasis added] …). Moreover, the court should not have administratively dismissed the amended complaint without further notice to the parties … . Marinello v Marinello, 2019 NY Slip Op 02697, Second Dept 4-10-19

 

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DISCLAIMER IN THE REAL ESTATE PURCHASE AND SALE CONTRACT PRECLUDED ACTIONS BASED IN FRAUD ALLEGING THE CONCEALMENT OF A RECURRING MOLD-CAUSING CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the causes of action alleging fraud in the concealment of a recurring mold-causing condition should have been dismissed. The real estate contract included a disclaimer which stated that plaintiffs relied upon their own inspection of the property and not any representations made by others:

“In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” … . In the context of real estate transactions, “New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment” … . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property” … . “To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor” … .

The presence of disclaimers in a written agreement may preclude a claim of common-law fraud by rendering any resulting reliance unjustified … . Moreover, a specific disclaimer of reliance on representations as to the condition of real property will generally bar related fraud-based claims … . Here, the contract of sale for the subject premises set forth,  a… lia, that the plaintiffs were “fully aware of the physical condition and state of repair of the Premises . . . based on [their] own inspection and investigation thereof,” and that they were “entering into this contract based solely upon such inspection and investigation and not upon any information . . . or representations . . . given or made by Seller or its representatives.” Comora v Franklin, 2019 NY Slip Op 02671, Second Dept 4-10-19

 

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