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VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION; EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT.

The First Department, over an extensive dissent, determined Family Court properly issued a final order of protection after respondent’s violation of a temporary order of protection. The court noted that the expiration of the order of protection did not render the appeal moot because the order “still imposes significant enduring consequences upon respondent…”. The dissent argued that a final order of protection cannot be issued unless a family offense has been committed:

Here, the Family Court found, on the record after a hearing, that respondent had willfully violated the temporary order of protection with his April 3, 2014 emails containing statements clearly intended to harass petitioner. As a result of this determination, the Family Court conducted a dispositional hearing on respondent’s violation of the temporary order of protection, and thereafter issued a new order of protection. The Family Court adhered to the prescribed procedure and did not exceed its jurisdiction by issuing this final order of protection. * * * … [W]e read Family Court Act § 846-a as prescribing the remedies available to the court when a respondent violates a temporary order of protection, which is what is at issue here. Matter of Lisa T. v King E.T., 2017 NY Slip Op 01487, 1st Dept 2-28-17

FAMILY LAW (VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/ORDER OF PROTECTION (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/APPEALS (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)

ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING.

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion, determined Family Court properly found mother had neglected her child. The child was not harmed by the mother. There was evidence the mother suffered from delusions:

A neglected child is one whose “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care” … . It is well settled that “[a] respondent’s mental condition may form the basis of a finding of neglect if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child[]” … .

In this case, the mother presented a risk of harm to her child through her unfounded fears that her daughter had been raped, since these fears resulted in the mother on different occasions “testing” the child to see if she was raped, by checking her diaper and by sticking a Q-tip inside her, and making an unnecessary trip to the hospital … .

Further, the mother displayed a “lack of insight” into her illness by refusing to agree that she had any mental health condition, despite her diagnoses, and by repeatedly refusing to comply with her medication regimen … .

Significantly, lack of evidence as to actual injury to the child is inconsequential. “A showing that [the child was] impaired by [the mother’s] failure to exercise a minimum degree of care is not required for an adjudication of neglect; it is sufficient that [the child was] in imminent danger of becoming impaired'” … .Indeed, the imminent danger standard exists specifically to protect children who have not yet been harmed and to prevent impairment … .

With regard to mental illness, we have previously found that a parent suffering from untreated paranoid delusions presents an imminent risk of harm to children who are placed in her care … . * * *

The neglect finding was not based only on the mother’s mental illness. Rather, it was based on her mental condition in conjunction with her failure to comply with her medication regimen and follow-up treatment, and the fact that her mental illness impaired her ability to care for her infant daughter, and caused her to keep unnecessarily checking her daughter for evidence of rape. Matter of Ruth Joanna O.O. (Melissa O.), 2017 NY Slip Op 01524, 1st Dept 2-28-17

 

FAMILY LAW (NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)/NEGLECT (NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)/MENTAL ILLNESS (FAMILY LAW, NEGLECT, ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING)

IMPLIED COVENANT OF GOOD FAITH DOES NOT APPLY WHERE THE CONTRACT ALLOWS REFUSAL OF LOANS FOR ANY REASON, EVEN THOUGH THE REFUSAL MAY HAVE BEEN INTENTIONALLY AIMED AT PUTTING PLAINTIFF OUT OF BUSINESS.

The First Department, in a full-fledged opinion by Justice Saxe, modifying (reversing) Supreme Court, determined that a contract provision which allowed defendant (Capital One) to deny loans to plaintiff (TFA) for any reason trumped any implied covenant of good faith and fair dealing, even though defendant’s actions GODDput plaintiff out of business:

Although “[i]n New York, all contracts imply a covenant of good faith and fair dealing in the course of performance” … , the existence of the covenant cannot be relied on as grounds for TFA’s action . The covenant of good faith and fair dealing cannot negate express provisions of the agreement … , nor is it violated where the contract terms unambiguously afford Capital One the right to exercise its absolute discretion to withhold the necessary approval … . Where a contract allows one party to terminate the contract in “its sole discretion” and for “any reason whatsoever,” the covenant of good faith and fair dealing cannot serve to negate that provision … . Notably, where the parties intended to limit either party’s rights under the loan agreement so that they could only be exercised “in good faith,” they specifically included such language; for example, section 1.1 of the agreement allows Capital One to establish a valuation methodology “in its sole and absolute discretion exercised in good faith.” In contrast, the provision of section 2.1 authorizing Capital One to decline any request for an advance “in its sole and absolute discretion” lacks any such limitation requiring Capital One to act in good faith when doing so. Because Capital One’s complained-of conduct consists entirely of acts it was authorized to do by the contract, its alleged motivation for doing so is irrelevant. Simply put, an intent to put TFA out of business cannot justify a lawsuit for a claimed breach of the covenant where the express provisions of the agreement allowed Capital One to act as it did. Transit Funding Assoc., LLC v Capital One Equip. Fin. Corp., 2017 NY Slip Op 01525, 1st Dept 2-28-17

CONTRACT LAW (IMPLIED COVENANT OF GOOD FAITH DOES NOT APPLY WHERE THE CONTRACT ALLOWS REFUSAL OF LOANS FOR ANY REASON, EVEN THOUGH THE REFUSAL MAY HAVE BEEN INTENTIONALLY AIMED AT PUTTING PLAINTIFF OUT OF BUSINESS)/GOOD FAITH, IMPLIED COVENANT (IMPLIED COVENANT OF GOOD FAITH DOES NOT APPLY WHERE THE CONTRACT ALLOWS REFUSAL OF LOANS FOR ANY REASON, EVEN THOUGH THE REFUSAL MAY HAVE BEEN INTENTIONALLY AIMED AT PUTTING PLAINTIFF OUT OF BUSINESS)

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INFORMATION ALLEGED BY THE DEFENDANTS TO HAVE REVEALED FRAUD IN THE SALE OF CREDIT DEFAULT OBLIGATIONS AT A TIME WHICH RENDERED THE CURRENT FRAUDULENT MISREPRESENTATION ACTION TIME-BARRED WAS NOT SUFFICIENT TO WARRANT A DISMISSAL AT THE PLEADING STAGE.

The First Department, in a full-fledged opinion by Justice Mazzarelli, over a two-justice dissent, in a case involving the sale of credit default obligations (CDO’s), determined the motion to dismiss the fraudulent misrepresentation cause of action was properly denied. Defendants argued the plaintiffs had sufficient information to alert them to the fraud at a time which would render the current action time-barred. The First Department determined the information cited by the defendants was insufficient to support dismissal at the pleading stage. [The opinion is fact-specific and too detailed to fairly summarize here]:

Here, it is undisputed that, when plaintiffs commenced the action, six years had passed since plaintiffs made their investments in the Funds. The question, then, is whether plaintiffs discovered, or could with reasonable diligence have discovered, the fraud more than two years before commencement (CPLR 213[8]). * * *

… [W]e make no conclusive finding that plaintiffs were blind to the scheme they accuse defendants of perpetrating. We merely determine, at this early stage of the litigation, that the evidence presented by defendants can be interpreted in a myriad of ways and does not facially clash with plaintiffs’ position that, even having some knowledge that the Funds had an equity component to them, they could not have known before the SEC proceeding the extent to which defendants used plaintiffs’ investment to acquire and control the Portfolio Companies, or otherwise had an obligation, based on that evidence, to further investigate. Thus, Supreme Court properly declined to dismiss the fraudulent misrepresentation complaint on statute of limitations grounds, and the viability of the defense must await a fully developed factual record, at which point it can be either decided as a matter of law on a motion for summary judgment, or at a trial. Norddeutsche Landesbank Girozentrale v Tilton, 2017 NY Slip Op 01482, 1st Dept 2-23-17

 

SECURITIES (INFORMATION ALLEGED BY THE DEFENDANTS TO HAVE REVEALED FRAUD IN THE SALE OF CREDIT DEFAULT OBLIGATIONS AT A TIME WHICH RENDERED THE CURRENT FRAUDULENT MISREPRESENTATION ACTION TIME-BARRED WAS NOT SUFFICIENT TO WARRANT A DISMISSAL AT THE PLEADING STAGE)/FRAUD (SECURITIES, INFORMATION ALLEGED BY THE DEFENDANTS TO HAVE REVEALED FRAUD IN THE SALE OF CREDIT DEFAULT OBLIGATIONS AT A TIME WHICH RENDERED THE CURRENT FRAUDULENT MISREPRESENTATION ACTION TIME-BARRED WAS NOT SUFFICIENT TO WARRANT A DISMISSAL AT THE PLEADING STAGE)/CREDIT DEFAULT OBLIGATIONS (INFORMATION ALLEGED BY THE DEFENDANTS TO HAVE REVEALED FRAUD IN THE SALE OF CREDIT DEFAULT OBLIGATIONS AT A TIME WHICH RENDERED THE CURRENT FRAUDULENT MISREPRESENTATION ACTION TIME-BARRED WAS NOT SUFFICIENT TO WARRANT A DISMISSAL AT THE PLEADING STAGE)

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JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB.

The First Department, reversing Supreme Court, determined plaintiff janitor could not sue for a slip and fall because the fall was caused by the condition he attempting to remedy as part of his job:

Dismissal of the complaint as against defendants is warranted in this action where plaintiff janitor alleges that he was injured when he slipped on pebbles on the bathroom floor of the building he was hired to clean. It is well established that a maintenance or cleaning worker has no claim at law for injury suffered from a dangerous condition that he was hired to remedy … , and here, plaintiff stated that as part of his job cleaning the bathroom, he frequently removed the pebbles from the floor. Black v Wallace Church Assoc., 2017 NY Slip Op 01480, 1st Dept 2-23-17

NEGLIGENCE (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/SLIP AND FALL (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/EMPLOYMENT LAW (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)/JANITORS (JANITOR CAN NOT SUE FOR A SLIP AND FALL CAUSED BY THE CONDITION HE WAS TO REMEDY AS PART OF HIS JOB)

THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION.

The First Department, reversing (modifying) Supreme Court, determined the owner of the lead car struck from behind was entitled to summary judgment. The allegation the lead car stopped suddenly was not sufficient to raise a question of fact:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of that driver to “come forward with an adequate nonnegligent explanation for the accident” … . A claim by the rear driver that “the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … . Bajrami v Twinkle Cab Corp., 2017 NY Slip Op 01458, 1st Dept 2-23-17

NEGLIGENCE (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)/REAR-END COLLISIONS  (THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. He fell from scaffolding materials stacked on a flatbed truck:

Plaintiff’s testimony that he fell from scaffolding materials stacked atop the surface of a flatbed truck, about 10 feet above the ground, and that he was not provided with a safety device that would have prevented his fall, was sufficient to establish his entitlement to partial summary judgment on his Labor Law § 240(1) claim … . Although plaintiff was wearing a safety harness at the time of the accident, there was no place on the truck where the harness could be secured. Idona v Manhattan Plaza, Inc., 2017 NY Slip Op 01444m 1st Dept 2-23-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK)/TRUCKS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK)

FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED.

The First Department determined plaintiffs’ fraud-based causes of action and the unjust enrichment cause of action were properly dismissed. Plaintiffs alleged defendant fraudulently induced them to sell their business (for $190 million) at a deflated price by concealing that the buyer was a competing business:

Damages for fraud are calculated according to the “out-of-pocket” rule and must reflect “the actual pecuniary loss sustained as the direct result of the wrong” … . Damages may only properly compensate plaintiffs for “what they lost because of the fraud, not . . . for what they might have gained,” and “there can be no recovery of profits which would have been realized in the absence of fraud” … . Here, plaintiffs seek to recover the profits they might have gained had the true identity of the buyer been revealed. But there is no way of knowing what purchase price would have been agreed upon had the buyer’s identity been known. Nor is there any suggestion that the agreed price was unfair … .

Plaintiffs’ fraud-based claims also fail because their reliance on the alleged misrepresentations was not reasonable. Plaintiffs did not press defendant for a contractual warranty regarding the purchaser’s identity, or even for direct answers to their questions on this subject, despite their awareness of defendant’s close relationship with their competitor and suspicions regarding its involvement. ” …

Plaintiffs’ unjust enrichment claim was also properly dismissed. To successfully plead unjust enrichment, “[a] plaintiff must allege that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered'” … . Here, the second element is not satisfied. Plaintiffs claim that defendant was unjustly enriched by a $25 million fee received from the competitor for its assistance in facilitating the purchase. Although there is no black-and-white rule that the payment complained of must have been made by the plaintiff itself … , plaintiffs’ claimed entitlement to the fee is too speculative to support their allegation that defendant was enriched “at [their] expense” … . Norcast S.ar.l. v Castle Harlan, Inc., 2017 NY Slip Op 01479, 1st Dept 2-23-17

 

FRAUD (FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED)/UNJUST ENRICHMENT (FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED)/DAMAGES (FRAUD, DAMAGES ALLEGED CANNOT BE SPECULATIVE, FRAUD-BASED CAUSES OF ACTION DISMISSED)

WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS.

The First Department determined defendant wife was properly awarded a percentage of plaintiff husband’s enhanced earning capacity related to his medical license. Husband worked long hours and unpopular shifts as an anesthesiologist to earn double the average salary of his peers—over $800,000 per year at one point. Wife enabled husband’s intense work schedule by caring for the children and home. [The decision is extensive and covers many issues not summarized here]:

The party seeking distribution of an award based on the other party’s enhanced earning capacity must establish its value through expert testimony … . Defendant’s expert used a methodology that is commonly used when calculating the value of enhanced earning capacity … . Plaintiff’s disagreement with certain assumptions made by the expert was not a basis to simply disregard the expert’s opinion and treat it as a complete nullity. Some of plaintiff’s criticisms resulted in adjustments in value at trial. * * *

The court … properly exercised its discretion in making a distributive award equal to 10% of plaintiff’s enhanced earnings … . It is well-established law that both parties in a matrimonial action are entitled to “fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account” …. . In reaching its decision the court below considered the statutory factors listed in Domestic Relations Law § 236, as well as the nontitled defendant spouse’s direct and/or indirect contributions to the marriage … .

… [P]laintiff was earning almost twice as much as other … doctors [in the firm] because he worked extraordinarily long hours, accepted unpopular shifts, like holidays, weekends and evenings, and was better compensated precisely because plaintiff kept this “totally unbalanced life.” By not adhering to a more balanced work schedule, plaintiff necessarily shifted primary responsibility for his home life to defendant. Although he may have borne equal, if not primary, responsibility for the children when he was home, this was often a physical impossibility, given his demanding work schedule. Defendant not only made it possible for plaintiff to work the grueling schedule that he kept, she also made sure plaintiff was able to study without interruption for the boards on two separate occasions. She did this by taking the children away to visit relatives and doing other things to keep them out of his way. Ning-Yen Yao v Karen Kao-Yao, 2017 NY Slip Op 01440, 1st Dept 2-23-17

 

FAMILY LAW (WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)/EQUITABLE DISTRIBUTION (WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)/ENHANCED EARNING CAPACITY (FAMILY LAW, EQUITABLE DISTRIBUTION, WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)

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CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION.

The First Department determined the continuing wrong doctrine did not apply to extend the statute of limitations in this breach of contract action. Plaintiff alleged he should not have been billed for certain services in which he never enrolled and the issuance of each new bill continued the wrong:

In contract actions, the doctrine is applied to extend the statute of limitations when the contract imposes a continuing duty on the breaching party … . Thus, where a plaintiff asserts a single breach — with damages increasing as the breach continued — the continuing wrong theory does not apply … .

Here, the alleged wrongs are the enrollment of plaintiff in the CPP and PAS programs in March 2001 and 2007, respectively, and there was no breach of a recurring duty. The monthly billings demanding payment of CPP and PAS fees, both before and after plaintiff closed his account, represent the consequences of those wrongful acts in the form of continuing damages, not the wrongs themselves, and do not qualify for application of the continuous wrong doctrine. Henry v Bank of Am., 2017 NY Slip Op 01436, 1st Dept 2-23-17

 

CONTRACT LAW (CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)/CIVIL PROCEDURE (CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)/CONTINUING WRONG DOCTRINE (CONTRACT LAW, CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)/STATUTE OF LIMITATIONS (CONTINUING WRONG DOCTRINE, CONTRACT LAW, CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)

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