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THE EXPENSE OF DEFENDING AN ACTION WHICH STEMMED FROM AN ATTORNEY’S MISREPRESENTATION CAN MEET THE INJURY REQUIREMENT OF A JUDICIARY LAW 487 ACTION (FIRST DEPT).

The Second Department determined the expense required to defend an action that resulted from an attorney’s misrepresentation can meet the injury requirement of a Judiciary Law 487 cause of action:

Judiciary Law § 487 imposes civil and criminal liability on any attorney who “(1) [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, (2) [w]ilfully delays his client’s suit with a view to his own gain”… . A plaintiff may state a Judiciary Law § 487 cause of action by relying upon a defendant’s intentional deceit during the course of an underlying action … . A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity … and is “focuse[d] on the attorney’s intent to deceive, not the deceit’s success” … . Accordingly, although injury to the plaintiff is an essential element of a Judiciary Law § 487 cause of action … , “recovery of treble damages under Judiciary Law § 487 does not depend upon the court’s belief in a material misrepresentation of fact in a complaint”… . Rather, because defending the action is a result of the misrepresentation, a party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation … . Betz v Blatt, 2018 NY Slip Op 02444, Second Dept 4-11-18

​ATTORNEYS (JUDICIARY LAW 487, THE EXPENSE OF DEFENDING AN ACTION WHICH STEMMED FROM AN ATTORNEY’S MISREPRESENTATION CAN MEET THE INJURY REQUIREMENT OF A JUDICIARY LAW 487 ACTION (FIRST DEPT))/JUDICIARY LAW 487 (ATTORNEYS, THE EXPENSE OF DEFENDING AN ACTION WHICH STEMMED FROM AN ATTORNEY’S MISREPRESENTATION CAN MEET THE INJURY REQUIREMENT OF A JUDICIARY LAW 487 ACTION (FIRST DEPT))/FRAUD (ATTORNEYS, JUDICIARY LAW 487, THE EXPENSE OF DEFENDING AN ACTION WHICH STEMMED FROM AN ATTORNEY’S MISREPRESENTATION CAN MEET THE INJURY REQUIREMENT OF A JUDICIARY LAW 487 ACTION (FIRST DEPT))

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MOTION, MADE BY PLAINTIFF’S NEW COUNSEL, TO VACATE A STIPULATION ENTERED INTO BY PRIOR COUNSEL SHOULD NOT HAVE BEEN GRANTED, PRIOR COUNSEL HAD THE APPARENT AUTHORITY TO ENTER THE STIPULATION AND PLAINTIFF CAN NOT LATER ARGUE PRIOR COUNSEL LACKED AUTHORITY (SECOND DEPT).

The Second Department determined Supreme Court should not have vacated a stipulated entered into in open court and signed by an attorney who had represented the plaintiff and had the apparent authority to enter the stipulation. The motion to vacate was made by new counsel hired by plaintiff:

The stipulation, signed by counsel for each party in this action during a court appearance, is a binding contract (see CPLR 2104 … ). Contrary to the plaintiff’s contention, her counsel at the time of the stipulation had the apparent authority to enter into the stipulation. This prior counsel signed and verified the summons and complaint, appeared for the plaintiff at the preliminary conference and the compliance conference, and filed a note of issue, all before entering into the stipulation on the plaintiff’s behalf. The presence of an attorney at pretrial conferences constitutes “an implied representation by [the client] to defendants that [the attorney] had authority” to bind the client to a stipulation … . Indeed, only attorneys who are authorized to enter into binding stipulations may appear at pretrial conferences … . Here, the plaintiff’s engagement of her prior counsel to represent her throughout the litigation and to appear on her behalf at pretrial and compliance conferences precludes her from arguing that prior counsel lacked the authority to bind her to the stipulation. “A stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation … . Chae Shin Oh v Jeannot, 2018 NY Slip Op 02446, Second Dept 4-11-18

​ATTORNEYS (STIPULATIONS, MOTION, MADE BY PLAINTIFF’S NEW COUNSEL, TO VACATE A STIPULATION ENTERED INTO BY PRIOR COUNSEL SHOULD NOT HAVE BEEN GRANTED, PRIOR COUNSEL HAD THE APPARENT AUTHORITY TO ENTER THE STIPULATION AND PLAINTIFF CAN NOT LATER ARGUE PRIOR COUNSEL LACKED AUTHORITY (SECOND DEPT))/CONTRACT LAW (STIPULATIONS, MOTION, MADE BY PLAINTIFF’S NEW COUNSEL, TO VACATE A STIPULATION ENTERED INTO BY PRIOR COUNSEL SHOULD NOT HAVE BEEN GRANTED, PRIOR COUNSEL HAD THE APPARENT AUTHORITY TO ENTER THE STIPULATION AND PLAINTIFF CAN NOT LATER ARGUE PRIOR COUNSEL LACKED AUTHORITY (SECOND DEPT))/STIPULATIONS (ATTORNEYS, MOTION, MADE BY PLAINTIFF’S NEW COUNSEL, TO VACATE A STIPULATION ENTERED INTO BY PRIOR COUNSEL SHOULD NOT HAVE BEEN GRANTED, PRIOR COUNSEL HAD THE APPARENT AUTHORITY TO ENTER THE STIPULATION AND PLAINTIFF CAN NOT LATER ARGUE PRIOR COUNSEL LACKED AUTHORITY (SECOND DEPT))/APPARENT AUTHORITY (ATTORNEYS, STIPULATIONS, MOTION, MADE BY PLAINTIFF’S NEW COUNSEL, TO VACATE A STIPULATION ENTERED INTO BY PRIOR COUNSEL SHOULD NOT HAVE BEEN GRANTED, PRIOR COUNSEL HAD THE APPARENT AUTHORITY TO ENTER THE STIPULATION AND PLAINTIFF CAN NOT LATER ARGUE PRIOR COUNSEL LACKED AUTHORITY (SECOND DEPT))

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FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT).

The First Department determined plaintiff probationary firefighter’s death from dehydration during fire department training (functional skills training or FST) was not the type of occupational injury which is actionable under General Municipal Law 205-a and Labor Law 27-a:

Decedent … , a probationary firefighter, passed away due to dehydration while performing the Fire Academy’s physically demanding Functional Skills Training (FST) exercise course, which was designed to simulate actual firefighting tasks under a controlled environment.

Plaintiff is not entitled to recover under GML § 205-a, as the injuries decedent sustained were not the type of occupational injury that Labor Law § 27-a was designed to protect, but rather, arose from risks unique to firefighting work … . While the performance of the FST course was part of training, and not part of firefighting per se, the ability to perform it efficiently was a necessary and important part of the job, as it ensures that a firefighter could effectively perform the tasks during an actual fire. The risks of dehydration and other physiological conditions experienced during FST training are the same as those inherent in actual firefighting. Given the special dangers firefighters face, and their responsibility to protect the public, judgments as to how they should be trained are better left for the FDNY supervisors and not second-guessed by the Department of Labor. Sears v City of New York, 2018 NY Slip Op 02430, First Dept 4-10-18

​MUNICIPAL LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/LABOR LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, LABOR LAW, FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/LABOR LAW (FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))/FIREFIGHTERS (MUNICIPAL LAW, LABOR LAW, EMPLOYMENT LAW , FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT))

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FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S RELATIONSHIP WITH THE PARTIES, PARTIES’ FAILURE TO CAREFULLY READ THE AGREEMENTS BLAMED ON ATTORNEY’S FRAUDULENT ASSURANCES, FRAUD, FRAUD IN THE INDUCEMENT, BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT ALLEGATIONS AGAINST ATTORNEY STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined the defendants’ counterclaims against their attorney, David, stated causes of action for fraud, fraud in the inducement, breach of fiduciary duty and breach of contract. Defendants alleged that David’s assurances led defendants to sign joint venture agreements to their detriment without carefully reading them. The court noted that, although David was not a signatory to the agreements, the forum selection clauses applied to him because of his relationship with the defendants, as expressed in an email:

The allegations of the complaint state a cause of action for fraudulent inducement … . The well settled principle relied on by David that a party claiming fraudulent inducement cannot be said to have justifiably relied on a representation negated by the plain terms of the contract they signed does not apply here, since his alleged assurances and fraud were the very cause of defendants’ failure to review the documents carefully. As it was reasonable for defendants to rely on the advice of counsel, we also reject David’s arguments premised on the plain language of the agreements that defendants admit they did not read carefully.

Defendants’ allegations describing their attorney-client relationship with David state a cause of action for breach of fiduciary duty. For example, they allege that he served as their attorney for years, both before and during the instant transaction, negotiating unrelated contracts and handling unrelated lawsuits and trusts and estates matters.

While in support of the fraudulent inducement claim defendants allege that the agreements were “brought about by fraud,” because, inter alia, David held himself out as their attorney and caused them to sign unfavorable agreements that he drafted, in contrast, in support of the fraud claim defendants focus on events following the execution of the agreements, namely, David’s “scheme to manufacture a bogus default” of the loan so as to seize valuable collateral without paying for it. These allegations state a cause of action for fraud … . Suttongate Holdings Ltd. v Laconm Mgt. N.V., 2018 NY Slip Op 02424, First Dept 4-10-18

​FRAUD (FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S RELATIONSHIP WITH THE PARTIES, PARTIES’ FAILURE TO CAREFULLY READ THE AGREEMENTS BLAMED ON ATTORNEY’S FRAUDULENT ASSURANCES, FRAUD, FRAUD IN THE INDUCEMENT, BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT ALLEGATIONS AGAINST ATTORNEY STATED CAUSES OF ACTION (FIRST DEPT))/CONTRACT LAW (FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S RELATIONSHIP WITH THE PARTIES, PARTIES’ FAILURE TO CAREFULLY READ THE AGREEMENTS BLAMED ON ATTORNEY’S FRAUDULENT ASSURANCES, FRAUD, FRAUD IN THE INDUCEMENT, BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT ALLEGATIONS AGAINST ATTORNEY STATED CAUSES OF ACTION (FIRST DEPT))/FORUM SELECTION CLAUSE (FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S RELATIONSHIP WITH THE PARTIES, PARTIES’ FAILURE TO CAREFULLY READ THE AGREEMENTS BLAMED ON ATTORNEY’S FRAUDULENT ASSURANCES, FRAUD, FRAUD IN THE INDUCEMENT, BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT ALLEGATIONS AGAINST ATTORNEY STATED CAUSES OF ACTION (FIRST DEPT))/ATTORNEYS  (FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S RELATIONSHIP WITH THE PARTIES, PARTIES’ FAILURE TO CAREFULLY READ THE AGREEMENTS BLAMED ON ATTORNEY’S FRAUDULENT ASSURANCES, FRAUD, FRAUD IN THE INDUCEMENT, BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT ALLEGATIONS AGAINST ATTORNEY STATED CAUSES OF ACTION (FIRST DEPT))/FIDUCIARY DUTY, BREACH OF (ATTORNEYS, FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S RELATIONSHIP WITH THE PARTIES, PARTIES’ FAILURE TO CAREFULLY READ THE AGREEMENTS BLAMED ON ATTORNEY’S FRAUDULENT ASSURANCES, FRAUD, FRAUD IN THE INDUCEMENT, BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT ALLEGATIONS AGAINST ATTORNEY STATED CAUSES OF ACTION (FIRST DEPT))

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FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the failure to cite the CPLR provision upon which the cross motion to vacate the default was based was not fatal to the motion because the basis was clear from the motion papers, (2) there was a question of fact whether defendant was served with the foreclosure summons and complaint requiring a traverse hearing, and (3) because defendant did not live at the subject premises (he lived next door), the CPLR 3215(G)(3) notice requirement did not apply:

Plaintiff argues that the subject action is not a residential mortgage foreclosure action because such actions involve foreclosure of a “home loan,” which according to RPAPL (Real Property Actions and Proceedings Law) 1304(6)(iii) is any loan secured by property “which is or will be occupied by the borrower as the borrower’s principal dwelling.” It is undisputed that defendant does not reside at the mortgaged property. …  Therefore, plaintiff asserts the action is not subject to the additional mailing requirement of CPLR 3215.

CPLR 3215(g)(3) provides that when a default judgment “based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation,” that person is entitled to additional notice of the action, which is provided by mailing the summons to his or her place of residence. The provision was enacted out of concern for “unsophisticated homeowners” who “do not receive sufficient notice that they are about to lose their homes through foreclosure” … . As defendant does not reside at the mortgaged property, this foreclosure proceeding does not place his home at risk. Accordingly, we find that plaintiff was not required to serve a 3215(g)(3) notice on defendant. Bank of Am., N.A. v Diaz, 2018 NY Slip Op 02421, First Dept 4-10-18

​FORECLOSURE (FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/CIVIL PROCEDURE (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/CPLR 3215(g)(3) (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))/TRAVERSE HEARING (FORECLOSURE, FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT))

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MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a ruling from the support magistrate on whether incarceration was recommended based on father’s willful violation of a child support order. Rather than making the recommendation, the support magistrate postponed the ruling and husband continued to violate the order for several months while the Family Court proceedings were ongoing, effectively making it impossible for mother to object or appeal:

The Family Court denied the mother’s objections to the Support Magistrate’s fact-finding order because it found that the order was not “final.” The order cited Family Court Act Section 439(e), which permits objections to a “final” order of a Support Magistrate, and Section 439(a), which provides that a “determination by a Support Magistrate that a person is in willful violation of an order . . . and that recommends commitment . . . shall have no force and effect until confirmed by a judge of the court.” This was error. First, under the plain language of the statute, the Support Magistrate’s fact-finding order was not an order that “shall have no force and effect until confirmed by a judge of the court,” since it did not recommend incarceration. The Support Magistrate’s failure to make a recommendation as to incarceration upon his finding of willfulness essentially constituted a recommendation against incarceration, since the mother could not seek that remedy without a recommendation from the Support Magistrate. Moreover, the parties were entitled to a complete written fact-finding order, including a recommendation as to incarceration, within five court days following completion of the hearing on the mother’s violation petition … . Accordingly, the Family Court should have considered the mother’s objections, and, upon doing so, should have exercised its authority to remand the matter to the Support Magistrate for an immediate recommendation as to incarceration, or to make, with or without holding a new hearing, its own findings of fact and order based on the record … . Matter of Carmen R. v Luis I., 2018 NY Slip Op 02422, First Dept 4-10-18

​FAMILY LAW (CHILD SUPPORT, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))/CHILD SUPPORT (FAMILY LAW, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))/SUPPORT MAGISTRATE (INCARCERATION, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))/APPEALS (FAMILY LAW, CHILD SUPPORT, INCARCERATION, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))

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ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court, determined the arbitrator’s ruling in this sexual harassment action violated public policy and was irrational. The arbitrator agreed with the findings of fact made by the Equal Employment Opportunity (EEO) investigation (which supported the sexual harassment allegations made by Melendez against Aiken) but determined the behavior did not rise to the level of a dischargeable offense:

The arbitrator’s decision fashions a remedy that violates public policy. Moreover, it contains language maligning victims in an entirely inappropriate manner, including statements that it was incumbent on Melendez to take appropriate action if she felt Aiken’s comments were inappropriate. Such a “blame the victim” mentality inappropriately shifts the burden of addressing a hostile work environment onto the employee. The arbitrator’s decision belies the realities of workplace sexual harassment. The fact that the victim did not earlier report Aiken’s behavior is not atypical and should in no way be construed as absolving Aiken of his misconduct.

The arbitrator’s decision effectively prevents petitioners from following their policies and fulfilling their legal obligations to protect against workplace sexual harassment. It is the employer’s responsibility to implement appropriate policies to protect against workplace harassment, including the institution of appropriate complaint procedures that encourage victims to come forward, and the implementation of appropriate sanctions that are designed to deter offensive behavior. …

Accordingly, public policy prohibits enforcement of the arbitration award in this case … . …

Further, the arbitrator’s decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that Aiken did not violate the workplace sexual harassment policy … . Matter of New York City Tr. Auth. v Phillips, 2018 NY Slip Op 02442, First Dept 4-10-18

​EMPLOYMENT LAW (SEXUAL HARASSMENT, ARBITRATION, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))/ARBITRATION (EMPLOYMENT LAW, SEXUAL HARASSMENT, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))/SEXUAL HARASSMENT (EMPLOYMENT LAW, SEXUAL HARASSMENT, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))/DISCRIMINATION (EMPLOYMENT LAW, SEXUAL HARASSMENT, ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT))

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FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fraudulent conveyance allegations, which were made “upon information and belief,” were insufficient, and the tortious interference with contract allegations were insufficient because there was no allegation the contract would not have been breached but for the defendant’s conduct:

Plaintiff alleges that defendants engaged in a fraudulent scheme to transfer and dispose of the assets of several related entities (the judgment debtors) in order to thwart plaintiff’s ability to collect debts owed by those entities, including judgments in two related actions.

The actual fraudulent conveyance claims, under the common law and Debtor and Creditor Law (DCL) § 276, should be dismissed because plaintiff failed to allege fraudulent intent with the particularity required by CPLR 3016(b) … . The key allegations were made “[u]pon information and belief,” without identifying the source of the information … . Moreover, the timing of the allegedly fraudulent transfers – beginning two years before the judgment debtors incurred the subject debts – undermines the claim of fraudulent intent… .

The constructive fraudulent conveyance claims pursuant to DCL 273, 274, and 275 should be dismissed because plaintiff failed to sufficiently allege that the transfers were made without fair consideration, as the relevant allegations were all made “[u]pon information and belief”…

Because the viability of the claims under DCL 276-a, 278, and 279 depends on the viability of the other fraudulent conveyance claims, these claims should likewise be dismissed.

The tortious interference claim should be dismissed because plaintiff failed to sufficiently allege that the contract “would not have been breached but for’ the defendant’s conduct” .. . The relevant allegations were vague and conclusory and supported by “mere speculation” … . Carlyle, LLC v Quik Park 1633 Garage LLC, 2018 NY Slip Op 02436, First Dept 4-10-18

​DEBTOR-CREDITOR (FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/FRAUD (DEBTOR-CREDITOR, FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/FRAUDULENT CONVEYANCES (DEBTOR-CREDITOR, FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/CONTRACT LAW (TORTIOUS INTERFERENCE, FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TORTIOUS INTERFERENCE WITH CONTRACT (FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/CIVIL PROCEDURE (FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/CPLR 3016 (DEBTOR-CREDITOR, FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/UPON INFORMATION AND BELIEF (COMPLAINT, (FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/COMPLAINT (UPON INFORMATION AND BELIEF, FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT).

The First Department determined defense counsel was not ineffective for turning down the court’s offer to instruct the jury that it need not adhere to the “acquit-first” rule. The jury had sent out two notes indicating deadlock on the top count (murder):

Defendant also argues that counsel was ineffective for failing to accept the court’s offer, prompted by the prosecutor’s suggestion, to deviate from the “acquit-first” rule … , and allow the jury, which had submitted two deadlock notes as to the top charge of murder in the second degree, to consider the lesser included count of manslaughter in the first degree without first reaching a not guilty verdict on the higher charge. We need not decide whether, as the People argue, counsel’s choice categorically cannot be deemed professionally unreasonable because the procedure the court made available was clearly contrary to New York law. Rather, we find that the choice counsel faced was quintessentially a judgment call, involving a significant measure of instinct and intuition, and therefore that the course chosen cannot be deemed to lack any objectively reasonable strategic basis. For example, counsel could reasonably have believed, as the court indicated it did, that there was some possibility of acquittal on all counts if the course of deliberations was not interrupted by an instruction authorizing departure from the acquit-first rule. In any event, defendant has likewise failed to establish ineffective assistance of counsel under either the state or federal standard. People v Tineo-Santos, 2018 NY Slip Op 02425, First Dept 4-10-18

​CRIMINAL LAW (ATTORNEYS, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/ACQUIT FIRST RULE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))

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QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ (Schwengbers’) motion for summary judgment in this prescriptive easement case should not have been granted. The action concerned a shared driveway and a question of fact was raised whether plaintiffs’ use of the driveway was “hostile:”

“A party claiming a prescriptive easement must show . . . that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” … . Hostility is the only element contested here. Once the other elements of a prescriptive easement are established, “hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive” … . However, permission can be inferred when “the relationship between the parties is one of neighborly cooperation and accommodation,” in which case no presumption of hostility will arise … . Moreover, “where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right” … . “Generally, the question of implied permission is one for the factfinder to resolve” … . …

… Schwengber … made assertions regarding her cordial and cooperative relationship — specifically relative to the driveway — with her neighbors who owned defendant’s parcel from 1974 to 2011. These assertions could be read to infer that plaintiffs had implied permission to use the driveway. Inasmuch as Schwengber’s affidavit contained assertions that supported inferences of both hostility and permissive use, plaintiffs failed to meet their initial burden on their summary judgment motion. Even if plaintiffs had met their burden, defendant submitted evidence indicating that his immediate predecessor-in-interest had an amicable and neighborly arrangement with plaintiffs. Schwengber v Hultenius, 2018 NY Slip Op 02379, Third Dept 4-5-18

​REAL PROPERTY LAW (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/EASEMENTS (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/PRESCRIPTIVE EASEMENTS (QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/HOSTILITY (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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