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THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD IN THE INDUCEMENT, AS OPPOSED TO AN INSINCERE PROMISE OF FUTURE PERFORMANCE; ALTHOUGH THE ISSUE WAS RAISED IN REPLY AND WAS NOT RAISED BELOW, IT WAS CONSIDERED ON APPEAL BECAUSE IT WAS DETERMINATIVE, DID NOT ALLEGE NEW FACTS, AND COULD NOT HAVE BEEN AVOIDED IF RAISED BELOW (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the complaint did not support a cause of action for fraud in the inducement. Plaintiff ordered an artistic silk floral display but rejected it when delivered on the ground the display did not match what plaintiff ordered. Defendants refused to refund the money. Although the inadequacy of the fraud in the inducement allegations was first raised in reply, the First Department considered it because it was determinative, did not allege new facts and could not have been avoided if raised below:

As for the fraud in the inducement claim, defendants challenged this claim in their reply brief in Supreme Court. While, normally, arguments set forth for the first time in reply should not be considered … , this Court will consider this argument as it is determinative, does not allege new facts, and is a legal argument on the face of the record that would not have been avoidable if raised in defendants’ moving brief below, and because the record is sufficient to resolve the issue … . Here, plaintiff merely alleged that defendants “grossly misrepresented the quality and nature of the Decorations” to induce plaintiff into retaining them and compensating them, and the representations were false when made. This simply alleges “an insincere promise of future performance under the contract, which is insufficient to plead fraud” … . As such, the fraud in the inducement claim is dismissed. Newport E. Inc. v Sviba Floral Decorators, Inc., 2022 NY Slip Op 00819, First Dept 2-8-22

 

THE SECOND DEGREE MURDER COUNTS SHOULD HAVE BEEN DISMISSED AS INCLUSORY CONCURRENT COUNTS OF THE FIRST DEGREE MURDER COUNTS (FIRST DEPT).

The First Department noted that the second-degree murder counts must be dismissed as inclusory concurrent counts of the first-degree murder counts:

As the People concede, the second-degree murder counts should be dismissed as inclusory concurrent counts of the first-degree murder counts (see CPL 300.40[3][b]). People v Ortega, 2022 NY Slip Op 00828, First Dept 2-8-22

 

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THE WRONGFUL DEATH CAUSE OF ACTION AGAINST DEFENDANT NURSING HOME SHOULD NOT HAVE BEEN DISMISSED; CONFLICTING EXPERT OPINIONS RAISED A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the wrongful death cause of action against defendant nursing home should not have been dismissed. Conflicting expert opinions raised a question of fact:

Defendant made a prima facie showing that it was not liable for the decedent’s injuries and death under Public Health Law § 2801-d(1) through the affirmation of its nursing expert, who opined that defendant did not violate the various federal and state regulations set forth in plaintiff’s bill of particulars. In opposition, plaintiff failed to raise an issue of fact, because her expert did not address any rules or regulations that were violated … .

As for the wrongful death cause of action, the parties’ nursing experts had similar credentials in gerontology and nursing, and both were qualified to opine on the applicable standard of care for residential nursing facilities … . Thus, the experts’ conflicting opinions present an issue of fact as to whether defendant was liable for the decedent’s injuries.  Jackson v Northern Manhattan Nursing Home, Inc., 2022 NY Slip Op 00723, First Dept 2-3-22

 

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COMPLAINT ALLEGATIONS OF A FRAUDULENT CONVEYANCE MADE “UPON INFORMATION AND BELIEF” DO NOT STATE A CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined “upon information and belief” complaint allegations of a fraudulent conveyance did not state a cause of action:

The complaint fails to state a cause of action for constructive fraudulent conveyance under former Debtor and Creditor Law §§ 273 and 274 … . Defendants are members of S. Land Development LLC (S. Land), which previously held title to real property and against which plaintiff obtained a money judgment in 2019 in a related action. Plaintiff alleges that defendants transferred or otherwise encumbered S. Land’s assets, rendering it insolvent and precluding plaintiff from being able to collect on the judgment. However, since the allegations are made “upon information and belief,” the complaint does not sufficiently allege that any transfers were made without fair consideration or rendered S. Land insolvent … . L&M 353 Franklyn Ave. LLC v Steinman, 2022 NY Slip Op 00724, First Dept 2-3-22

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; COUNSEL SAID A GUILTY PLEA MAY RESULT IN DEPORTATION WHEN DEPORTATION WAS MANDATORY (FIRST DEPT).

The First Department determined defendant did not receive effective assistance of counsel because he was told pleading guilty may result in deportation when deportation was mandatory:

The existing record sufficiently demonstrates that defendant was deprived of effective assistance of counsel (see Padilla v Kentucky, 559 US 356, 369, 374 [2010]) when his attorney failed to advise him that his guilty plea to a drug-related felony would result in mandatory deportation, and merely stated that “this may and probably will affect his immigration status” … . The appeal is held in abeyance to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea. People v Acosta, 2022 NY Slip Op 00737, First Dept 2-3-22

 

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IN THIS SEXUAL ABUSE CASE, THE CHILD’S MENTAL HEALTH RECORDS SHOULD BE REVIEWED BY THE JUDGE IN CAMERA TO DETERMINE WHETHER ANY RECORDS ARE RELEVANT TO THE RESPONDENT’S CLAIM THE CHILD FABRICATED THE SEXUAL ABUSE ALLEGATIONS; FAMILY COURT PROPERLY DENIED RESPONDENT’S REQUEST FOR DISCOVERY OF THE RECORDS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, held the judge properly denied discovery of the child’s mental health records in this sexual abuse proceeding, but the judge should review the records in camera to determine if any records support respondent’s position that the child fabricated the sexual abuse allegations:

Confidential mental health records may only be disclosed upon a finding by a court that “the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must conduct a balancing test to weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery” … .

… [G]iven respondent’s need to prepare his defense, his right to impeach the child’s credibility as she is likely to be a witness, and the child’s diminished interest in the confidentiality of older records from an institution that is not currently providing services to her, we find that an in camera review of the … records is warranted … . …

… [W]e find that the Family Court properly denied his request for those records … . Were a court to grant such a request on the sparse showing in this case, virtually every child’s therapy records would be subject to exposure. Matter of Briany T. (Justino G.), 2022 NY Slip Op 00629, First Dept 2-1-22

 

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THE WRENCH WHICH FELL AND STRUCK PLAINTIFF COULD HAVE BEEN TETHERED TO THE WORKER WHO DROPPED IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT SUBMIT AN EXPERT AFFIDAVIT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. A wrench slipped out of a co-worker’s hand and fell 10 or 15 feet striking plaintiff. Defendant’s expert opinion that the wrench could not be tethered to a wall missed the point that the wrench could be tethered to the worker. Plaintiff was not required to submit an expert opinion:

Plaintiff is entitled to summary judgment on the Labor Law § 240(1) claim based on [defendant] NYCHA’s failure to provide an adequate safety device to protect him from falling objects that were required to be secured … . Third-party defendant Vestar, Inc.’s expert opinion that the wrench “could not have been functionally employed if it was secured/tethered on the parapet wall” completely misses the point, since the wrench could have been tethered to the worker. … [T]he accident report … made the recommendation “to use tethering devices while working from heights,” to prevent reoccurrence of such an accident … . Contrary to NYCHA’s and Vestar’s contention, plaintiff was not required to proffer an expert affidavit … . Rincon v New York City Hous. Auth., 2022 NY Slip Op 00639, First Dept 2-1-22

 

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DESPITE THE ORDER OF PROTECTION EXCLUDING RESPONDENT FROM THE HOME, THE PETITIONER PRESENTED SUFFICIENT EVIDENCE RESPONDENT WAS A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; PEITIONER DEMONSTRATED RESPONDENT HAD NEGLECTED THE CHILD BY COMMITTING DOMESTIC VIOLENCE IN THE CHILD’S PRESENCE (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence demonstrated respondent was a person legally responsible (PLR) for the child and respondent neglected the child by committing domestic violence in the child’s presence:

Petitioner demonstrated by a preponderance of the evidence that respondent was a person legally responsible (PLR) for the subject child, as well as for the child’s three older siblings. Respondent and the children’s mother were in a romantic relationship and lived together before the child was born, and they both represented to caseworkers that respondent was the child’s biological father. There is evidence that, although he was excluded from the home because of an order of protection against him, respondent maintained communication with the mother and slept at the home at least on occasion, sharing the mother’s bed. Respondent failed to appear or testify to dispute the evidence that he was the child’s biological father or a PLR for him … . The fact that respondent was excluded from the household before the child’s birth as a result of having committed acts of excessive corporal punishment against the child’s eldest sibling does not outweigh the evidence that demonstrates that he is a PLR for the child … . The finding that respondent is a PLR for the child is further supported by his failure to appear in court, “allowing the court to draw a negative inference against him” … . Matter of Tristian B. (Winston B.), 2022 NY Slip Op 00498, First Dept 1-27-22

 

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THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT). ​

The First Department, reversing Supreme Court and setting aside the verdict, determined the trial judge should have given the adverse inference charge with respect to a missing video surveillance tape:

… [T]he court erred in declining to give an adverse inference charge with respect to a missing video surveillance tape. An order stating that plaintiff was entitled to such a charge had been issued during discovery upon plaintiff’s motion for sanctions pursuant to CPLR 3126. Thus, the adverse inference charge was a discovery sanction, not a prospective evidentiary ruling … . While the verdict is supported by sufficient evidence, that error was not harmless. Hegbeli v TJX Cos., Inc., 2022 NY Slip Op 00502, First Dept 1-27-22

 

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PLAINTIFF WAS AN EMPLOYEE OF THE CONTRACTOR DEFENDANT HOMEOWNER HIRED TO BUILD A NEW STAIRCASE; PLAINTIFF WAS INJURED BY A PROTRUDING SCREW ON THE NEW STAIRCASE; DEFENDANT WAS NOT LIABLE; THE HOMEOWNER DID NOT CREATE THE CONDITION, DID NOT SUPERVISE THE CONTRACTOR’S WORK, AND DID NOT HAVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant homeowner was not liable to plaintiff, an employee of the contractor defendant hired to replace a staircase. Plaintiff was injured by a protruding screw attached to the new staircase:

… [D]efendant established prima facie that he did not create the allegedly unsafe condition in the unfinished staircase … . Although defendant testified that he tried to repair the old staircase before hiring the contractor, the uncontradicted evidence showed that the contractor removed the old staircase and that plaintiff was injured on a screw attached to the new staircase. The new staircase was built entirely by the contractor.

… [P]laintiff’s testimony that defendant gave the contractor instructions on where to place the staircase and general instructions on how he wanted the construction to proceed does not, without more, raise a triable issue of fact as to whether defendant created the condition. On the contrary, the mere retention of general supervisory powers over an independent contractor, as opposed to the giving of specific directions on how to do the work, cannot form a basis for the imposition of liability against the principal …

There is … no evidence in the record that defendant had actual or constructive notice of the condition in the unfinished staircase, as the protruding screw was not visible and apparent, nor is there any evidence showing that it existed for a sufficient length of time before the accident to permit defendant to discover and remedy it … . Lara v Kadir, 2022 NY Slip Op 00504, First Dept 1-27-22

 

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