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COMPLAINT ALLEGING BREACH OF A JOINT VENTURE AGREEMENT SHOULD HAVE BEEN DISMISSED, TWO ESSENTIAL ELEMENTS OF A JOINT VENTURE, SHARING COSTS AND CONTROL, WERE ABSENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the underlying breach of contract complaint should have been dismissed. Plaintiff alleged the contract created a joint venture. But the absence of an agreement to share costs and control precluded any finding that a joint venture had been formed by the contract:

In order to properly plead the existence of a joint venture agreement, a plaintiff must allege “acts manifesting the intent of the parties to be associated as joint venturers, mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge, a measure of joint proprietorship and control over the enterprise, and a provision for the sharing of profits and losses”… . “An indispensable [element] of a contract of partnership or joint venture, both under common law and statutory law, is a mutual promise or undertaking of the parties to share in the profits of the business and submit to the burden of making good the losses” … .

Here, plaintiff fails to indicate the losses he would be jointly and severally liable for, and points to no provision in the alleged agreement for the sharing of any losses. Instead, there is nothing more than a conclusory allegation that any losses would be borne equally by the parties. To the contrary, the allegations in the complaint before us clearly state that any prospective losses were intended to be paid solely from defendant's share of the proceeds of the project. The failure to provide for the sharing of losses from the project is fatal to plaintiff's claim that a joint venture was created … .

Moreover, the complaint specifically alleged that management and control of the enterprise was to be completely vested in defendant, thus negating another element of a joint venture … . Slabakis v Schik, 2018 NY Slip Op 05962, First Dept 8-30-18

PARTNERSHIP LAW (JOINT VENTURE, COMPLAINT ALLEGING BREACH OF A JOINT VENTURE AGREEMENT SHOULD HAVE BEEN DISMISSED, TWO ESSENTIAL ELEMENTS OF A JOINT VENTURE, SHARING COSTS AND CONTROL, WERE ABSENT (FIRST DEPT))/CONTRACT LAW (JOINT VENTURE, COMPLAINT ALLEGING BREACH OF A JOINT VENTURE AGREEMENT SHOULD HAVE BEEN DISMISSED, TWO ESSENTIAL ELEMENTS OF A JOINT VENTURE, SHARING COSTS AND CONTROL, WERE ABSENT (FIRST DEPT))/JOINT VENTURE (COMPLAINT ALLEGING BREACH OF A JOINT VENTURE AGREEMENT SHOULD HAVE BEEN DISMISSED, TWO ESSENTIAL ELEMENTS OF A JOINT VENTURE, SHARING COSTS AND CONTROL, WERE ABSENT (FIRST DEPT))

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ALTHOUGH SUPREME COURT USED THE WRONG STANDARD OF PROOF, THE FINDING THAT DEFENDANT’S TESTIMONY AT THE HEARING ON HIS MOTION TO VACATE HIS CONVICTION WAS NOT CREDIBLE JUSTIFIED DENIAL OF THE MOTION, DEFENDANT, WHO HAS BEEN DEPORTED, ARGUED HE WOULD NOT HAVE PLED GUILTY BUT FOR HIS ATTORNEY’S ASSURANCE HE WOULD NOT BE SUBJECT TO DEPORTATION (FIRST DEPT).

The First Department determined defendant's motion to vacate his conviction based upon ineffective assistance of counsel was properly denied. Seventeen years ago defendant pled guilty after being informed by his lawyer that he would not be subject to deportation. Although the First Department agreed that Supreme Court used the wrong standard of proof for analyzing ineffective assistance, the First Department held Supreme Court's finding that defendant's testimony at the hearing was not credible was a sufficient basis for denying the motion:

The motion court accepted defendant's “uncontested assertion” in his affirmation that his attorney told him that his guilty plea would not result in negative immigration consequences such as deportation, and found that he had thus established the first of the two necessary prongs for ineffective assistance of counsel set forth in Strickland v Washington (466 US 668, 688 [1984]), that is, that “counsel's representation fell below an objective standard of reasonableness.” * * *

… [T]he second prong of the Strickland test [is] whether “there [was] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”  … . …

Defendant's principal argument on appeal is that the hearing court applied the wrong evidentiary standard in applying the Strickland test. He maintains that the only relevant inquiry was whether there was a “reasonable probability” that he would have proceeded to trial had he known that his guilty plea would result in deportation proceedings. … This part of defendant's argument is meritorious … .

… The court made a specific finding that defendant, the only witness, was not credible, a determination that is entitled to “great deference” … . His lack of credibility negates any conclusion that there was a reasonable probability that he would have proceeded to trial but for his attorney's misadvice. People v Pinilla, 2018 NY Slip Op 05960, First Dept 8-30-18

CRIMINAL LAW (ALTHOUGH SUPREME COURT USED THE WRONG STANDARD OF PROOF, THE FINDING THAT DEFENDANT'S TESTIMONY AT THE HEARING ON HIS MOTION TO VACATE HIS CONVICTION WAS NOT CREDIBLE JUSTIFIED DENIAL OF THE MOTION, DEFENDANT, WHO HAS BEEN DEPORTED, ARGUED HE WOULD NOT HAVE PLED GUILTY BUT FOR HIS ATTORNEY'S ASSURANCE HE WOULD NOT BE SUBJECT TO DEPORTATION (FIRST DEPT))/IMMIGRATION LAW (CRIMINAL LAW, ALTHOUGH SUPREME COURT USED THE WRONG STANDARD OF PROOF, THE FINDING THAT DEFENDANT'S TESTIMONY AT THE HEARING ON HIS MOTION TO VACATE HIS CONVICTION WAS NOT CREDIBLE JUSTIFIED DENIAL OF THE MOTION, DEFENDANT, WHO HAS BEEN DEPORTED, ARGUED HE WOULD NOT HAVE PLED GUILTY BUT FOR HIS ATTORNEY'S ASSURANCE HE WOULD NOT BE SUBJECT TO DEPORTATION (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ALTHOUGH SUPREME COURT USED THE WRONG STANDARD OF PROOF, THE FINDING THAT DEFENDANT'S TESTIMONY AT THE HEARING ON HIS MOTION TO VACATE HIS CONVICTION WAS NOT CREDIBLE JUSTIFIED DENIAL OF THE MOTION, DEFENDANT, WHO HAS BEEN DEPORTED, ARGUED HE WOULD NOT HAVE PLED GUILTY BUT FOR HIS ATTORNEY'S ASSURANCE HE WOULD NOT BE SUBJECT TO DEPORTATION (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ALTHOUGH SUPREME COURT USED THE WRONG STANDARD OF PROOF, THE FINDING THAT DEFENDANT'S TESTIMONY AT THE HEARING ON HIS MOTION TO VACATE HIS CONVICTION WAS NOT CREDIBLE JUSTIFIED DENIAL OF THE MOTION, DEFENDANT, WHO HAS BEEN DEPORTED, ARGUED HE WOULD NOT HAVE PLED GUILTY BUT FOR HIS ATTORNEY'S ASSURANCE HE WOULD NOT BE SUBJECT TO DEPORTATION (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ALTHOUGH SUPREME COURT USED THE WRONG STANDARD OF PROOF, THE FINDING THAT DEFENDANT'S TESTIMONY AT THE HEARING ON HIS MOTION TO VACATE HIS CONVICTION WAS NOT CREDIBLE JUSTIFIED DENIAL OF THE MOTION, DEFENDANT, WHO HAS BEEN DEPORTED, ARGUED HE WOULD NOT HAVE PLED GUILTY BUT FOR HIS ATTORNEY'S ASSURANCE HE WOULD NOT BE SUBJECT TO DEPORTATION (FIRST DEPT))

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HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF’S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT).

The First Department, modifying Supreme Court, determined defendant church demonstrated it was entitled to the homeowner exemption from liability in this Labor Law 240 (1) and 241 (6) actions stemming from plaintiff's fall from a scaffold. The failure to plead the exemption as a defense did not preclude raising it in the summary judgment motion. The Archdiocese was not an agent of the owner because it did not have the authority to control or supervise plaintiff's work.  And the Labor Law 200 cause of action should have been dismissed because the accident involved the means and methods of work controlled solely by plaintiff's employer:

Defendant Catholic Church of Christ the King made a prima facie showing that the accident in which plaintiff was injured falls within the exemption to Labor Law § 240(1) and Labor Law § 241(6) for “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law § 240[1]; Labor Law § 241). Plaintiff was repairing a detached garage associated with a church rectory used for both residential and church purposes … . Moreover, the certificate of occupancy indicates that the rectory constituted a dwelling and a private garage … . Defendant's failure to plead this affirmative defense in its answer does not mandate the denial of its motion, since plaintiff was not surprised by the defense, and fully opposed the motion (see CPLR 3018[b] … ).

Plaintiff failed to raise issues of fact as to the applicability of the homeowner exemption. His assertion that the garage was exclusively restricted to use by teachers at an elementary school owned by the church is unsupported by the record. Bautista v Archdiocese of N.Y., 2018 NY Slip Op 05959, First Dept 8-30-18

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))/CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))/CPLR 3018 (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))/HOMEOWNER EXEMPTION (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF'S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT))

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ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT).

The Second Department determined no appeal lies from an adjournment in contemplation of dismissal (ACD) which has resulted in dismissal:

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” … .

Thus, an appeal is academic “unless an adjudication of the merits will result in immediate and practical consequences to the parties” … .

The application of these principles to the facts of this case establish that the appeal is academic. In the order appealed from, the Family Court adjourned the proceedings in contemplation of dismissal until July 18, 2017. Where a proceeding is adjourned in contemplation of dismissal, and the proceeding is not restored to the calendar and no applications by the petitioner or the child's attorney or motions by the court to restore the proceeding to the calendar are pending, “the petition is, at the expiration of the adjournment period, deemed to have been dismissed by the court in furtherance of justice” (Family Ct Act 1039[f]). Thus, the petition has been dismissed, by operation of law and in the furtherance of justice… . Given that the appellants have received the exact relief they seek, any determination we might make in this matter would have no direct effect on the rights of the parties before us … . Matter of Priciliyana C. (Jacklyn L.), 2018 NY Slip Op 05927, Second Dept 8-29-18

APPEALS (ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/CRIMINAL LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/FAMILY LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))

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OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion for summary judgment in this dog bite case should not have been granted. An affidavit from plaintiff's neighbor raised a question of fact whether defendant was aware of the dog's vicious propensities. The Second Department further determined that the fact that the out-of-state affidavit was not accompanied by a certificate of conformity did not render it inadmissible:

…[I]n opposition to the motion, the plaintiff raised triable issues of fact as to whether the defendant's dog had vicious propensities, and whether the defendant knew or should have known of the dog's alleged vicious propensities … . According to an affidavit of the plaintiff's neighbor Michael Walters, submitted in opposition to the motion, on two occasions prior to the incident, the defendant warned Walters to be careful near the dog because he bites. This affidavit was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities … . Contrary to the defendant's contention, Walters' affidavit was admissible, notwithstanding that it was subscribed and sworn to out of state and not accompanied by a certificate of conformity as required by CPLR 2309(c), as such a defect is not fatal, and no substantial right of the defendant was prejudiced by disregarding the defect … . Lipinsky v Yarusso, 2018 NY Slip Op 05925, Second Dept 8-29-18

ANIMAL LAW (DOG BITE, (CERTIFICATE OF CONFORMITY, DOG BITE, OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG'S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT))/DOG BITE (OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG'S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT))/CIVIL PROCEDURE (CERTIFICATE OF CONFORMITY, DOG BITE, OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG'S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT))/CPLR 2309 (CERTIFICATE OF CONFORMITY, DOG BITE, OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG'S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT))/CERTIFICATE OF CONFORMITY (DOG BITE, OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG'S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT))/OUT-OF-STATE AFFIDAVIT (CERTIFICATE OF CONFORMITY, DOG BITE, OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG'S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT))

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PLAINTIFF DID NOT ALLEGE OR DEMONSTRATE IN THE OPPOSING PAPERS THAT ANY OF THE ESPINAL EXCEPTIONS APPLIED TO DEFENDANT SNOW-REMOVAL CONTRACTOR IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the snow-removal contractor's (Critics Choice's) motion for summary judgment in this slip and fall case should have been granted. Because plaintiff did not allege a violation of any of the Espinal factors, Critics Choice's demonstration that plaintiff was not a party to the snow removal contract was sufficient to warrant summary judgment. In opposition, plaintiff did not raise a question of fact about any of the Espinal exceptions:

“A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties”… . Nevertheless, “[a] contractor may be held liable for injuries to a third party where, in undertaking to render services, the contractor entirely displaces the duty of the property owner to maintain the premises in a safe condition, the injured party relies on the contractor's continued performance under the agreement, or the contractor negligently creates or exacerbates a dangerous condition”… .

The Critics Choice defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was not a party to any snow removal contract … , and thus, they owed no duty of care to the plaintiff … . Since the plaintiff did not allege facts in his amended complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions, the Critics Choice defendants, in establishing their prima facie entitlement to judgment as a matter of law, were not required to affirmatively demonstrate that these exceptions did not apply … . …

The plaintiff's conclusory contention that the Critics Choice defendants launched a force or instrument of harm by creating or exacerbating the icy condition that allegedly caused him to fall was insufficient to raise a triable issue of fact … . Laronga v Atlas-Suffolk Corp., 2018 NY Slip Op 05924, Second Dept 8-29-18

NEGLIGENCE (CONTRACT LAW, PLAINTIFF DID NOT ALLEGE OR DEMONSTRATE IN THE OPPOSING PAPERS THAT ANY OF THE ESPINAL EXCEPTIONS APPLIED TO DEFENDANT SNOW-REMOVAL CONTRACTOR IN THIS SLIP AND FALL CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (NEGLIGENCE,  PLAINTIFF DID NOT ALLEGE OR DEMONSTRATE IN THE OPPOSING PAPERS THAT ANY OF THE ESPINAL EXCEPTIONS APPLIED TO DEFENDANT SNOW-REMOVAL CONTRACTOR IN THIS SLIP AND FALL CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ESPINAL EXCEPTIONS (SNOW-REMOVAL CONTRACTOR, ONTRACT LAW, PLAINTIFF DID NOT ALLEGE OR DEMONSTRATE IN THE OPPOSING PAPERS THAT ANY OF THE ESPINAL EXCEPTIONS APPLIED TO DEFENDANT SNOW-REMOVAL CONTRACTOR IN THIS SLIP AND FALL CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant fencing club's motion for summary judgment in this negligent hiring and supervision, negligent infliction of emotional distress action should have been granted. A fencing coach (Kfir) who worked for the club engaged in an unlawful sexual relationship with infant plaintiff, for which the coach  went to prison. The Second Department held that the respondeat superior cause of action was not viable because the coach was not acting within the scope of his employment. The court further found that the defendant club demonstrated it did not have notice of the coach's criminal propensities and did not breach a duty owed plaintiffs:

… Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action seeking to hold it liable under the doctrine of respondeat superior, as Kfir's misconduct was committed for wholly personal motives, and not in furtherance of Fencers Club's business and within the scope of his employment … .

… Fencers Club established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no knowledge of any propensity by Kfir to commit sexual misconduct, either prior to or during his employment with Fencers Club . The coaches, parents, and students of the club were shocked when they learned of the criminal misconduct, which took place outside of Fencers Club's premises and in Kfir's apartment. Although it was later revealed that Kfir gave massages to the infant plaintiff and another fencing … student in a workout room, and that he made sexually provocative comments toward the infant plaintiff during fencing lessons, these incidents were never reported to Fencers Club. Much of the communication between the infant plaintiff and Kfir took place by cell phone or text message, outside of Fencers Club's purview. …

Although the plaintiffs point to the fact that Fencers Club did not conduct criminal background checks prior to hiring their instructors, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Here, there was no evidence that Fencers Club had knowledge of any facts that would have caused a reasonably prudent person to conduct a criminal background check on Kfir. Moreover, the plaintiffs failed to come forward with any evidence that a criminal background check of Kfir would have revealed a propensity to commit sexual assault … . … Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent infliction of emotional distress by demonstrating that it did not breach a duty of care owed to the infant plaintiff … . KM v Fencers Club, Inc., 2018 NY Slip Op 05923, Second Dept 8-29-18

NEGLIGENCE (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT HIRING AND SUPERVISION (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/RESPONDEAT SUPERIOR (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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EXPERT AFFIDAVIT DID NOT DEMONSTRATE, PRIMA FACIE, THAT DEFENDANT DOCTORS DID NOT DEPART FROM GOOD AND ACCEPTED PRACTICE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert affidavit submitted by defendant emergency room defendants was insufficient to eliminate a question of fact whether the doctors departed from good and accepted medical practice. Plaintiff alleged his sports related injury was not correctly diagnosed in the emergency room:

The plaintiff … submitted an affirmation from an expert, a physician certified in general surgery, who opined that the plaintiff had presented to the emergency room on October 2, 2013, with symptoms of compartment syndrome and that the moving defendants departed from the accepted standard of care by failing to perform adequate testing and diagnose the compartment syndrome, from which the plaintiff was suffering at that time.

… [T]he moving defendants failed to establish, prima facie, that the emergency room defendants did not depart from good and accepted standards of medical care, or that any such departure was not a proximate cause of the plaintiff's injuries. The moving defendants' expert merely recounted the treatment rendered and opined in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice … . Kelly v Rosca, 2018 NY Slip Op 05922, Second Dept 8-29-18

MEDICAL MALPRACTICE (EXPERT AFFIDAVIT DID NOT DEMONSTRATE, PRIMA FACIE, THAT DEFENDANT DOCTORS DID NOT DEPART FROM GOOD AND ACCEPTED PRACTICE, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT DID NOT DEMONSTRATE, PRIMA FACIE, THAT DEFENDANT DOCTORS DID NOT DEPART FROM GOOD AND ACCEPTED PRACTICE, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE ACTION, MORTGAGE PROPERLY CANCELED AND DISCHARGED IN THIS RPAPL 1501 ACTION (SECOND DEPT).

The Second Department determined plaintiff was entitled, pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501 and the statute of limitations, to cancel and discharge a mortgage which defendant bank (Deutsche Bank) had accelerated more than six years before. Defendant bank argued that a letter sent by the original property owner, Aird (who had taken out the mortgage), pursuant to General Obligations Law § 17-101, acknowledged the debt and revived the time-barred claim. Supreme Court properly rejected that argument:

“General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt” … . To constitute a valid acknowledgment, a “writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it” … . Contrary to Deutsche Bank's contention, a letter written by Aird that accompanied his second short sale package submitted to Deutsche Bank's loan servicer did not constitute an unqualified acknowledgment of the debt or manifest a promise to repay the debt sufficient to reset the running of the statute of limitations … . Karpa Realty Group, LLC v Deutsche Bank Natl. Trust Co., 2018 NY Slip Op 05921, Second Dept 8-29-18

Similar issues and result in Yadegar v Deutsche Bank Natl. Trust Co, 2018 NY Slip Op 05957, Second Dept 8-29-18

FORECLOSURE (LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE ACTION, MORTGAGE PROPERLY CANCELED AND DISCHARGED IN THIS RPAPL 1501 ACTION (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE ACTION, MORTGAGE PROPERLY CANCELED AND DISCHARGED IN THIS RPAPL 1501 ACTION (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE ACTION, MORTGAGE PROPERLY CANCELED AND DISCHARGED IN THIS RPAPL 1501 ACTION (SECOND DEPT))/DEBTOR-CREDITOR (FORECLOSURE, GENERAL OBLIGATIONS LAW, LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE ACTION, MORTGAGE PROPERLY CANCELED AND DISCHARGED IN THIS RPAPL 1501 ACTION (SECOND DEPT))/GENERAL OBLIGATIONS LAW 17-101 LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE ACTION, MORTGAGE PROPERLY CANCELED AND DISCHARGED IN THIS RPAPL 1501 ACTION (SECOND DEPT))

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“NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT).

The Second Department determined the order and judgment of foreclosure was properly granted. The court explained that an addendum to the note, which included the phrase “notwithstanding anything to the contrary set forth in the Note,” controlled. Based on the language of the addendum, appellants were required to make monthly payments during the construction period. Appellants had argued that, under the terms of the Note, no payments were required until the construction was complete:

“[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . “Where the terms of an agreement are unambiguous, interpretation is a question of law for the court” … . “A written contract will be read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose” … . It is important not to distort the meaning of a writing by placing “excessive emphasis . . . upon particular words or phrases” … .

Here, pursuant to the note, Todd Amus agreed that he would “pay interest beginning on the Permanent Loan Commencement Date,” i.e., January 1, 2010, and would “make these payments every month until [he had] paid all the principal and interest and any other charges” he might owe under the note. However, Todd Amus also executed the note addendum, which was incorporated into and “deemed to amend and supplement the Note,” and in which he agreed to its terms “[n]otwithstanding anything to the contrary set forth in the Note.” IndyMac Venture, LLC v Amus, 2018 NY Slip Op 05920, Second Dept 8-29-18

CONTRACT LAW (“NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT))/FORECLOSURE (“NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT))/NOTWITHSTANDING CLAUSE (CONTRACT LAW, “NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT))

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