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Plaintiff Had Made Out a Prima Facie Case of Undue Influence—Trial Judge Erred by Making Credibility Determinations and Granting a Judgment In Favor of the Defendant As a Matter of Law (CPLR 4401)

In reversing Supreme Court, the Second Department determined the motion for a judgment as a matter of law pursuant to CPLR 4401 should not have been granted.  The plaintiff sought to set aside a conveyance by deed on the ground of undue influence. The Second Department held that plaintiff had made out a prima facie case and sent the matter back for trial in front of a different judge:

” A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'” … . ” In considering the motion, the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … .

The burden of proving undue influence generally rests with the party asserting its existence … . “However, where there is a confidential relationship between the beneficiary and the grantor, [a]n inference of undue influence’ arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction” … . “In the absence of an explanation, the beneficiary has the burden of proving by clear and convincing evidence that the transaction was fair and free from undue influence” … .

Here, in granting the defendant’s motion pursuant to CPLR 4401, the Supreme Court improperly resolved issues of the credibility of the witnesses against the plaintiff … . Viewing the evidence in a light most favorable to the plaintiff, and resolving all issues of credibility in the plaintiff’s favor, we find that the plaintiff established, prima facie, that a confidential relationship existed between the decedent and the defendant, requiring the defendant to come forth with an explanation of the circumstances of the transaction. Palladino v McCormick, 2014, NY Slip Op 07992, 2nd Dept 11-19-14

 

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The Toll of the Statute of Limitations Under the Continuing Representation Doctrine Ceased When the Attorney Was Discharged, Not When the Consent to Change Attorney Was Subsequently Filed—Various Ways In Which the Attorney-Client Relationship Can Be Terminated In this Context Explained In Some Depth

The Second Department, in a full-fledged opinion by Justice Dillon, held that the continuing representation toll of the statute of limitations ceases when the attorney is actually discharged and not when the consent to change attorney is subsequently filed:

An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim (see CPLR 214[6]…). Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court … , regardless of when the operative facts are discovered by the plaintiff … . However, “causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” … . The three-year statute of limitations is tolled for the period following the alleged malpractice until the attorney’s continuing representation of the client on a particular matter is completed … . For the doctrine to apply, there must be clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” … . * * *

There are different ways that attorney-client relationships can be ended. One way is for the client to discharge the attorney, which can be done at any time with or without cause … . A second way is for the attorney and client to execute a Consent to Change Attorney or for counsel to execute a stipulation of substitution, which is then filed with the court in accordance with CPLR 321(b) (see Vincent Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C321:2). Alternatively, if the attorney deems it necessary to end the relationship without the consent of the client, such as where there is an irretrievable breakdown in the relationship or a failure of cooperation by the client, the attorney may move, on such notice as may be directed by the court, to be relieved as counsel by court order (see e.g. CPLR 321[2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c]…).

An affirmative discharge of an attorney by the client is immediate. By contrast, from the standpoint of adverse parties, counsel’s authority as an attorney of record in a civil action continues unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321 … . This rule protects adverse parties from the uncertainty of when or whether the authority of an opposing attorney has been terminated …, even when the adverse party is informally aware that a discharge or substitution of an opposing counsel is pending or imminent … . * * *

The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered … . “One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties”‘ … . What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions. Farage v Ehrenberg, 2014 NY Slip OP 07977, 2nd Dept 11-19-14

 

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Pursuant to the Doctrine of Caveat Emptor, Seller of Home Was Not Obligated to Disclose Information About the Possibility of the Incursion of Golf Balls from the Neighboring Golf Course

The Second Department determined a complaint alleging fraudulent concealment against the seller of plaintiffs’ home (Glickenhous) was properly dismissed.  Plaintiffs bought property bordering a golf course.  After a tree bordering the course fell, golf balls landed on plaintiffs’ property.  The doctrine of caveat emptor required the dismissal of the complaint pursuant to CPLR 3211(a)(1) [documentary evidence utterly refutes allegations in the complaint] and CPLR 3211(a)(7) [pleading does not state a cause of action] :

“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” … . “Mere silence on the part of the seller, without some affirmative act of deception, is not actionable as fraud” … . ” 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 responsibilities fixed by the doctrine of caveat emptor'” … . “Where the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations” … .

Here, Glickenhaus had no duty to disclose any information regarding the premises under the doctrine of caveat emptor … . Moreover, any risk to the property posed by the incursion of golf balls was a matter readily ascertainable by the plaintiffs through the exercise of ordinary intelligence, and the documentary evidence submitted on the motion demonstrates that any such concerns were a matter of public record not peculiarly within the knowledge of Glickenhaus … . Behar v Glickenhaus Westchester Dev Inc, 2014 NY Slip Op 07969, 2nd Dept 11-19-14

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Failure to File Proof of Service Is a Procedural Irregularity Which Can Be Cured

The Second Department reversed Supreme Court, finding that plaintiff’s failure to file proof of service of a complaint was a procedural irregularity which had been promptly cured.  The defendant (Hernandez), who was in default, was given 30 days to appear and answer:

The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004 … . Here, in light of the plaintiff’s prompt action in moving to correct the irregularity following the denial of his motion for leave to enter a default judgment and the lack of prejudice to Hernandez, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to deem the filing of proof of service on Hernandez timely nunc pro tunc … . However, contrary to the plaintiff’s contention, a court may not grant such relief retroactive to Hernandez’s prejudice by placing him in default as of a date prior to the order … . In other words, service will not be deemed complete …, as the plaintiff argues (see CPLR 308[4]). Rather, Hernandez must be afforded an additional 30 days after service upon him of a copy of this decision and order to appear and answer … . Khan v Hernandez, 2014 NY Slip Op 07985, 2nd Dept 11-19-14

 

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Filing of Article 78 Petition Itself Constituted a Demand that Respondent Perform Its Duty, the Triggering Event for the Four-Month Statute of Limitations in a Mandamus to Compel Proceeding/Supreme Court and Surrogate’s Court Have Concurrent Jurisdiction Over the Administration of an Estate

The Second Department noted that Supreme Court and Surrogate’s Court have concurrent jurisdiction over the administration of a decedent’s estate. The petitioner commenced the Article 78 proceeding to compel the NYC Employees’ Retirement System (NYCERS) to accept a designation of a beneficiary form.  Surrogate’s Court had declined to exercise jurisdiction over the proceeding. The Second Department explained that the filing of the petition itself triggered the four-month statute of limitations for mandamus, so the proceeding was timely:

In a proceeding in the nature of mandamus to compel, the four-month statute of limitations begins to run “after the respondent’s refusal, upon the demand of the petitioner . . . to perform its duty” (CPLR 217[1]…). The filing of a CPLR article 78 petition can itself be construed as a demand … . Here, the petitioner made her demand that NYCERS perform its duty to accept her late husband’s fully completed and notarized designation of beneficiary form by filing the petition in this proceeding … . Accordingly, the petition is not time-barred … . Matter of Gopaul v NYC Employees’ Retirement Sys, 2014 NY Slip Op 0802-0, 2nd Dept 11-19-14

 

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Although “Zone of Danger” Damages Were Asserted in the Complaint, the Failure to Request a “Zone of Danger” Jury Instruction and the Failure to Object to the Verdict Sheet (Which Did Not Mention “Zone of Danger” Damages) Precluded the Trial Court from Setting Aside the Verdict and Ordering a New Damages Trial

The Court of Appeals determined the trial court should not have set aside the verdict because “zone of danger” damages to loved ones who witnessed the death of plaintiff’s decedent (apparently caused by a collapse of a roof) were not presented to the jury. Although asserted in the complaint, no jury instruction on “zone of danger” damages was requested and no mention of “zone of danger” damages appeared on the verdict sheet.  Plaintiffs did not object to the jury charge or verdict sheet:

The issue of whether plaintiffs Gary Motelson and Evan Motelson had suffered and/or would continue to suffer emotional distress, as a result of being placed in a zone of danger wherein they witnessed the death of Steven Motelson, while asserted in the complaint, was not argued to the jury at trial. Nor was this question addressed in Supreme Court’s charge or submitted to the jury on the verdict sheet. Significantly, the questions on the verdict sheet concerning the roof support system asked the jury about the causation of “Steven Motelson’s injuries and death,” and not about harms to any others. Plaintiffs did not object to the jury charge or verdict sheet. In these circumstances, Supreme Court erred when it set aside the jury verdict and ordered a new trial on damages. Motelson v Ford Motor Co, 2014 NY Slip Op 07926, CtApp 11-18-14

 

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Defendant’s Unsigned Deposition Transcript Admissible In Support of Defendant’s Summary Judgment Motion/Okay to Submit Deposition Excerpts As Long As They Are Not Misleading

The First Department noted that the fact that a deposition transcript submitted in support of a summary judgment motion was not signed did not render the transcript inadmissible and further noted that it is proper to submit excerpts from depositions provided they are not misleading.  The lawsuit alleged the defendant driver of a sanitation truck, Wygand, was negligent. Summary judgment was granted to the defendants:

There was no requirement that Wygand’s deposition transcript be signed by him in order to be admissible in support of the City defendants’ motion because Wygand accepted its accuracy by submitting it in support of his motion for summary judgment dismissing the complaint … . There was also nothing improper about submitting only excerpts of deposition transcripts in support of the motion, as long as they were not misleading. Castano v Wygand, 2014 NY Slip Op 07940, 1st Dept 11-18-14

 

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Matter First Raised In a Reply Affirmation Is Not Properly Before an Appellate Court

The First Department affirmed the denial of defendants’ motion for summary judgment noting that a matter raised for the first time in defendants’ reply affirmation is not properly before an appellate court.  Anderson v Pena, 2014 NY Slip Op 07948, 1st Dept 11-18-14

 

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Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

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Inadvertently Disseminated Investigative Report [Concerning a Doctor’s Conduct With Respect to Plaintiff’s Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable—Matter Must Be Returned to the “Status Quo Prior to the [Inadvertent] Disclosure”

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent’s death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court’s order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

…[W]e conclude that Supreme Court erred in granting defendants’ motion only in part, and should have granted the motion in its entirety. “Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions,” including Public Health Law § 230 (9), which are not applicable here … . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor’s] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the “status quo prior to the[inadvertent] disclosure”… . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14

 

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