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Criteria for Abutting Property Owner’s Liability for Accumulated Snow and Ice on a Sidewalk (In the Absence of a Statute or Ordinance) Explained

The Second Department explained the liability of an abutting property owner for accumulated ice and snow on a sidewalk.  The slip and fall in this case occurred before NYC Administrative Code 7-210 imposed liability on abutting property owners:

“In the absence of a statute or ordinance, an owner or lessee of property abutting a public sidewalk may be held liable where it undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous'” … . Here, [defendant]  made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him on the ground that neither he nor anyone acting in his behalf performed snow removal at the premises, and that he was not liable for any actions his tenants may have taken with respect to the sidewalk … . Harris v City of New York, 2014 NY Slip Op 08319, 2nd Dept 11-26-14

 

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Release Did Not Exclude Liability for Personal Trainer’s Negligence

The First Department determined that the wording of a release for a personal training program did not express an unequivocal intent to limit liability for negligence.  The plaintiff alleged that the trainer negligently instructed him to lift an excessive amount of weight:

Prior to beginning training at defendant’s facility, plaintiff executed a release wherein he acknowledged that there were “inherent risks in participating in a program of strenuous exercise” and released defendant from “all claims . . . which

I . . . . may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program.” It is undisputed that General Obligations Law § 5-326 does not bar enforcement of this release as defendant’s facility is an instructional, and not a recreational, one. However, the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence … . While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not “express[] any intention to exempt . . . defendant from liability for injury . . . which may result from [its] failure to use due care . . . in [its] training methods” … . …[T]he release does not purport to release defendant from all personal injury claims, “whether or not based on the acts or omissions of [defendant],” or contain other language conveying a similar import … .  Kim v Harry Hanson Inc, 2014 NY Slip Op 08229, 1st Dept 11-25-14

 

Contract Could Potentially Be Performed Within a Year—Dismissal on Statute of Fraud Grounds Properly Denied

The Fourth Department affirmed the denial of defendant’s motion to dismiss the complaint on the ground that the oral agreement violated the statute of frauds.  The court determined the contract was capable of being performed within a year:

“As long as [an] agreement may be fairly and reasonably interpreted’ such that it may be performed within a year, the [s]tatute of [f]rauds will not act as a bar [to enforcing it] however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … . Here, although the parties’ original agreement provided that the purchase price would be paid in monthly installments over a period of five years, the agreement was revised to provide that if plaintiff, inter alia, transferred the accounting practice or ceased to practice for a period of 30 days, plaintiff would owe defendant the remainder of the purchase price in a lump sum. Thus, because plaintiff could have fully performed the alleged agreement within the first year by paying defendant such a lump sum, defendant did not meet her burden of establishing that the statute of frauds renders the agreement void and unenforceable … . Stevens v Perrigo, 2014 NY Slip Op 08195, 4th Dept 11-21-14

 

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Complaint Against Highest Bidder on Real Property Which Subsequently Refused to Execute the Contract of Sale Properly Dismissed—No Agreement Which Satisfied the Statute of Frauds and No Part Performance

The Third Department affirmed Supreme Court’s dismissal of the complaint seeking specific performance of a real estate contract or damages for breach of contract.  Defendant executed and delivered the bidding package and the required down payment, bid on the property on line and was the highest bidder.  When the contract of sale was delivered to the defendant, the defendant refused to execute it.  Supreme Court dismissed the complaint because there was no agreement which satisfied the statute of frauds and there was no part performance.  The court explained the relevant analytical criteria:

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The statute of frauds provides, as relevant here, that a contract for the sale of real property “is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged” (General Obligations Law § 5-703 [2]). To satisfy that statute, the memorandum “must designate all parties, identify and describe the subject matter and state all of the essential terms of a complete agreement” … . The memorandum is not required to be contained in one document; separate “signed and unsigned writings [can] be read together, provided that they clearly refer to the same subject matter or transaction,” contain all of the essential terms of a binding contract …, and the “unsigned writing [was] prepared by the party to be charged” .. . At least one document signed by the party to be charged must “establish[] a contractual relationship between the parties,” with the unsigned documents referring on their face to the same transaction … . * * *

A contract may be enforced, despite failing to comply with the statute of frauds, “in cases of part performance” (General Obligations Law § 5-703 [4]). When analyzing part performance for potential invocation of equitable principles, courts should only consider the actions and detrimental reliance of the party seeking enforcement of the contract … . Additionally, the conduct must be “unequivocally referable” to the alleged agreement … . Post Hill LLC v E Tetz & Sons Inc, 2014 NY Slip Op 08089, 3rd Dept 11-20-14

 

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Heightened Pleading Requirements for Fraud Not Met

The First Department determined that plaintiff’s fraud cause of action was properly dismissed for failure to meet the heightened pleading requirements:

Plaintiff has not satisfied the heightened pleading standard for a fraud claim under CPLR § 3016(b) because it failed to identify any of the allegedly, false representations that [defendant] made with the then present intent to induce plaintiff’s investment in the project. Moreover, the fraudulent inducement claim duplicates the breach of contract claim because plaintiff has not alleged any representation that is collateral to the contract … . “A fraud-based claim is duplicative of breach of a contract claim when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.” MMCT LLC v JTR Coll Point LLC, 2014 NY Slip Op 08103, 1st Dept 11-20-14

 

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Defendants Unable to Demonstrate that Plaintiff’s Alleged Breach of a Related Contract Relieved Defendants of the Obligation to Pay a Promissory Note—No Showing the Promissory Note and Oral Agreement Were “Intertwined”

The First Department determined the allegations that plaintiff’s breach of a related oral agreement relieved defendants of the obligation to pay a promissory note were insufficient to defeat summary judgment on the note:

” [T]he general rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only unless it can be shown that the contract and the instrument are “intertwined” and that the defenses alleged to exist create material issues of triable fact'” … . Here, the defendants failed to demonstrate that the alleged oral construction management agreement was “inextricably intertwined” with the promissory note … . Castle Restoration & Constr Inc v Castle Restoration LLC, 2014 NY Slip Op 07972, 2nd Dept 11-19-14

 

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Agreement to Pay over $500,000 (Re: Prior Loans Allegedly Made Over a Period Time) Not Enforceable Because the Agreement Did Not Express Any Consideration—Past Consideration Is No Consideration Because the Detriment Did Not Induce the Promise

The Second Department determined that an agreement to pay over $500,000, allegedly constituting the amount of past loans made over a period of time, was not enforceable because the agreement did not express any consideration.  However, the cause of action for monies had and received properly survived summary judgment:

The lack of consideration for a note is a bona fide defense to payment thereof … . Generally, past consideration is no consideration and cannot support an agreement because “the detriment did not induce the promise” … . That is, “since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise” … . However, a “promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed” (General Obligations Law § 5-1105 [emphasis added]).

Here, as indicated, the agreement did not express any consideration. Thus, it is not enforceable as a promissory note or as a contract (see General Obligations Law § 5-1105; Uniform Commercial Code § 3-104[1][a]-[d]; [2][d…). Samet v Binson, 2014 NY Slip Op -7643, 2nd Dept 11-12-14

 

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Work Performed by Plaintiff Was Not “Home Improvement”—No License Required

The Second Department affirmed Supreme Court’s finding that the installation of motorized window shades did not constitute “home improvement” and therefore plaintiff was not required to be licensed to perform the work.  If a license had been required by the Administrative Code of the City of New York, plaintiff would not have been able to recover under contract or quantum meruit:

“Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed both under the contract and on a quantum meruit basis” … . Here, contrary to the defendants’ contention, the Supreme Court properly determined that the plaintiff’s installation of motorized window shades in their condominium did not constitute “home improvement” work within the meaning of Administrative Code of the City of New York § 20-386(2)…). Rather, the plaintiff’s installation of motorized window shades constituted decorative work, which was not “incidental or related to” the separate home improvement renovations being performed by other contractors at the defendant’s condominium (Administrative Code of City of NY § 20-386[2]…). Schimko v Haley, 2014 NY Slip Op 07644, 2nd Dept 11-12-14

 

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Questions of Fact Raised About Whether Premarital Agreement Was the Product of Overreaching

The Second Department reversed Supreme Court, finding that defendant-wife had raised a question of fact about the validity and enforceability of the premarital agreement.  The agreement purported to resolve all financial issues in the event of divorce and entitled defendant-wife only to a payment of $25,000.00 for each year of marriage.  Plaintiff-husband had assets of $10,000,000.00 and defendant-wife had assets of $170,000.00 at the time of the marriage:

An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse … . Such an agreement may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct … .

There is evidence that the defendant was not represented by independent counsel in connection with the preparation and execution of the allegedly “take-it-or-leave-it” premarital agreement that is the subject of this appeal. In addition, contrary to the plaintiff’s contention, the preprinted financial forms executed by the parties do not demonstrate that they were expecting to enter into a premarital agreement, as the forms recite that they were furnished by a commercial bank in connection with an application for a mortgage. The defendant therefore raised triable issues of fact as to whether the premarital agreement was the product of overreaching, such that it would be rendered unenforceable … . Bibeau v Sudick, 2014 NY Slip Op 07608, 2nd Dept 11-12-14

 

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“Notwithstanding Clause” in Contract Insulated Town from Liability for Bond Payments Re: a Waste Disposal Facility

The Second Department determined Supreme Court properly resolved conflicting contract provisions by reference to General Municipal Law 109-b (2) which governs installment contracts entered into by municipalities.  The contract concerned the operation of a waste disposal facility which closed before the bonds used to fund it were paid off.  The insurance company sought payment from the town’s sanitary district. The court held that the clauses in the contract which insulated the district from liability for the payments (if the funds were not appropriated) were enforecable:

Consistent with the requirements of General Municipal Law § 109-b(2)(f), which applies to installment contracts entered into by municipalities, section 24 of the lease between the District and NCIDA states that:

“Notwithstanding any other provision of this Agreement, (i) this Agreement shall be deemed executory only to the extent of the moneys budgeted and appropriated and available for the purpose of this Agreement, and no liability on account thereof shall be incurred by the District beyond the amount of such moneys, and (ii) it is understood that neither this Agreement nor any representation by any public employee or officer creates any legal or moral obligation to request, budget, appropriate or make available moneys for the purpose of this Agreement.”

Such clauses are intended to be utilized as a shield against the imprudent use of taxpayers’ dollars, and not as a sword to divorce the State, for purposes of its own convenience, from a contract fairly entered into and honestly performed … . Nevertheless, “even though a municipality may possess sufficient funds to satisfy a particular obligation, such funds cannot be deemed available’ if the expenditure thereof would be improvident” … .

Here, although in its lease with the NCIDA the District promised to seek appropriations sufficient to make the lease payments, the lease also repeatedly stated that the District’s liability for payments was conditioned upon the appropriation of funds. Indeed, the District’s promise to seek appropriations was tempered by the provision stating that it was required to do so only “subject to the provisions of Section 24 hereof.” Since “trumping language such as a notwithstanding’ provision controls over any contrary language’ in a contract,” the Supreme Court properly relied upon this section as the basis for its determination … . Frankenmuth Mut Ins v Waste Mgt of NY LLC, 2014 NY Slip Op 07624, 2nd Dept 11-12-14

 

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