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IN COMPUTING THE AMOUNT OWED IN THIS FORECLOSURE ACTION, THE REFEREE RELIED ON AN AFFIDAVIT FROM A BANK EMPLOYEE WHICH DID NOT INCLUDE THE RELATED BUSINESS RECORDS; THE AFFIDAVIT THEREFORE WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s computation of the amount owed in this foreclosure action was not supported by the record. The affidavit of the bank’s employee was based on business records which were not produced, rendering the affidavit hearsay:

Supreme Court should have denied the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale, and granted that branch of the defendants’ cross motion which was to reject the referee’s report. The referee’s computations as to the amount due and owing to the plaintiff were not substantially supported by the record … . An affidavit of an assistant vice president of the plaintiff, which was submitted in support of the plaintiff’s motion to establish the amount due and owing, constituted inadmissible hearsay and lacked probative value because the business records purportedly relied upon in making the calculations were not produced … . Bank of Am., N.A. v Barton, 2021 NY Slip Op 05939, Second Dept 11-3-21

 

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THE CONTRACT OF SALE INCLUDED THE PURCHASER’S AGREEMENT TO FORFEIT THE DOWN PAYMENT IF SHE DID NOT CLOSE ON THE AGREED DATE; THEREFORE THE SELLERS WERE ENTITLED TO THE DOWN PAYMENT; UNJUST ENRICHMENT CANNOT BE CLAIMED IN THE FACE OF A WRITTEN AGREEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the failure to close on the date agreed to in the contract of sale was a default entitling defendants to retain the down payment:

Defendants submitted a signed copy of the contract of sale, which contains all the material terms, and the amendment to the contract, pursuant to which plaintiff agreed that, in exchange for additional time to close on the purchase, she would cover defendants’ carrying costs and would waive any right to recovery of the down payment if she did not close on the sale by the agreed-to date. Plaintiff did not close by the required date, and the balance of the down payment was remitted to defendants. Plaintiff’s failure to close by the agreed-to date constitutes a default under the purchase agreement and the amendment thereto, and the default entitles defendants to retain the down payment as liquidated damages pursuant to paragraph 13.1 of the purchase agreement and paragraph 5 of the amendment … .

Similarly, a claim for unjust enrichment will not stand in the face of the written agreement … . An appeal to equity is equally unavailing, since the law is established that “a vendee who defaults on a real estate contract without lawful excuse cannot recover his or her down payment” … . Jennings v Silfen, 2021 NY Slip Op 05923, First Dept 10-28-21

 

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SUPREME COURT SHOULD NOT HAVE ORDERED THE SALE OF THE MARITAL RESIDENCE; HUSBAND AND WIFE HAD NOT AGREED ON THE MATERIAL TERMS OF THE SALE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, over a two justice dissent, determined the wife did not consent to the sale of the marital residence. There was never a meeting of the minds. Therefore Supreme Court should not have ordered the sale:

The husband’s proposed order contained many of the conditions imposed by Supreme Court in the order on appeal, including scheduled mandatory price reductions and required acceptance of certain offers. The wife’s proposed counter order, on the other hand, contained no proposed initial list price, no procedure for list price reduction or reevaluation, and no required acceptance of offers at any price level. As to a potential sale, the wife’s proposed counter order provided that the property “should either be listed for sale or the Wife shall advise the Husband in writing that she intends to buy-out his interest in the Townhouse” and, further, that “[t]he Townhouse will only be sold under the terms of an agreed Stipulation between the parties.”

The order on appeal reflects that Supreme Court adopted the husband’s order with minimal revisions, essentially rejecting the wife’s preconditions to the sale of the townhouse and imposing its own additional conditions. … [E]ven assuming arguendo that the dissent is correct that the wife initially agreed to the sale of the townhouse, she revoked her consent because the parties were unable to agree on the material terms of the sale … . Taglioni v Garcia, 2021 NY Slip Op 05936, First Dept 10-28-21

 

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ASSAULT AND BATTERY CAUSES OF ACTION AGAINST THE POLICE DO NOT REQUIRE A SPECIAL DUTY OWED TO PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the assault and battery causes of action against the city did not require demonstration of a special duty owed plaintiffs by the police:

Plaintiff’s … causes of action sounded in assault and battery, and not negligence. Therefore, the question was not whether the police owed plaintiff a special duty … , but whether the force used against her was more than necessary under the circumstances … . Plaintiff’s deposition testimony concerning the police officers’ conduct toward her supported the elements of a claim for assault and battery … . While defendants did not specifically recall interacting with plaintiff, they described a situation where they were disbursing a large crowd that was gathering around three different fights going on at the same time. Defendants do not dispute that plaintiff may have been pushed or shoved during the course of that incident. “Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” .. . Butler v City of New York, 2021 NY Slip Op 05810, First Dept 10-26-21

 

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DEFENDANT WAS NOT ADEQUATELY INFORMED ABOUT HIS SENTENCING EXPOSURE, THE NATURE OF THE CHARGES AND THE RISKS OF REPRESENTING HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant was not adequately warned about the risks of representing himself:

The record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … , including the potential for his sentences in two pending cases, arising from unrelated incidents, to run consecutively. The court also failed to inquire into defendant’s understanding of “the nature of the charges” … . This despite defendant’s admission that he did “[n]ot necessarily” understand the charges in one case and was “still coming to grips with the charges” in the other case. The court’s statement during the waiver colloquy that defendant was “facing felony charges” was inadequate for that purpose.

Moreover, the court’s inquiry did not “accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . The court failed to warn defendant about the numerous pitfalls of representing himself before and at trial, such as unfamiliarity with legal terms, concepts, and case names; the potential challenges of cross-examining witnesses and delivering an opening statement and summation as a pro se criminal defendant. While there is no mandatory “catechism for this inquiry,” there must be a “searching inquiry” conducted by a court before permitting self-representation … . Under the particular circumstances of this case, we find that defendant’s waiver of his right to counsel was not knowing, intelligent, and voluntary. People v Perry, 2021 NY Slip Op 05826, First Dept 10-26-21

 

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THE INCAPACITATED PERSON’S SON SHOULD NOT HAVE BEEN REPLACED AS GUARDIAN BY A NON-FAMILY-MEMBER IN THE ABSENCE OF A TESTIMONIAL HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Incapacitated Person’s (IP’s) son should not have been removed as guardian and replaced with a non-family-member in the absence of a testimonial hearing:

Rather than hold a testimonial hearing, Supreme Court simply accepted what the Court Examiner claimed in her motion. The Court did not make any findings of fact or conclusions of law to justify the removal of petitioner. Nor did it hold that removal of the petitioner was in the best interest of the IP. Petitioner did not have any opportunity to testify under oath, or rebut the allegations made against him, despite his competency as a guardian being directly at issue … . A testimonial hearing in this case is necessary so that the record can be developed, and the disputed issues of fact and law can be resolved.

We have long recognized that strangers will not be appointed either a guardian of the person or the property unless it is impossible to find someone within the family circle who is qualified to serve  … . The preference for a relative may be overridden by a showing that the guardian-relative has rendered inadequate care to the IP, has an interest adverse to the IP or is otherwise unsuitable to exercise the powers necessary to assist the IP … . Moreover, the ultimate remedy of removal may be an abuse of discretion, where a guardian’s errors do not prejudice or harm the estate. The court should also consider whether other less drastic remedies, such as ordering compliance or reducing the guardian’s compensation, would be appropriate. Matter of Roberts v Maxis, 2021 NY Slip Op 05833, First Dept 10-26-21

 

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM TWO INCIDENTS: A FORM FELL OFF A WALL ONTO PLAINTIFF; PLAINTIFF WAS INJURED BY A DEFECTIVE GRINDER (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motions for summary judgment on Labor Law 240 (1) and 241 (6) causes of causes of action should have been granted. Two separate incidents were alleged: (1) a concrete form fell three to five feet off a wall onto plaintiff; and (2) plaintiff was injured after he was directed to use a defective grinder:

… [Plaintiff] had been instructed to clean up debris directly underneath a form used for concrete, and that the form came off the wall and fell on top of him from a height of three to five feet … . Plaintiff’s inability to explain precisely what caused the form to fall on him does not preclude Labor Law § 240(1) liability … . Plaintiff demonstrated that he was injured when the steel and plywood form fell on him because an elevation-related safety device failed, or no device was placed and operated so as to provide him with adequate protection … .

… [P]laintiff was not required to supply an expert affidavit … . …

Plaintiff was directed to use a visibly defective grinder that had no blade, safety guard or side handle. There was also no cut-off switch. While he was using the grinder, it spontaneously cut off and then turned back on, without plaintiff engaging the power switch. When plaintiff complained, he was instructed to proceed with the defective grinder or go home. Viruet v Purvis Holdings LLC, 2021 NY Slip Op 05840, First Dept 10-26-21

 

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THE MOTION TO DISMISS THIS ACTION TO QUIET TITLE SHOULD NOT HAVE BEEN CONVERTED TO A MOTION FOR SUMMARY JUDGMENT TO WHICH PLAINTIFFS HAD NO OPPORTUNITY TO RESPOND; THE COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE PURSUANT TO RPAPL ARTICLE 15 (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint seeking to quiet title should not have been converted to a summary judgment motion. The complaint stated a cause of action to quiet title pursuant to RPAPL article 15:

… [T]he court should not have converted defendant’s motion to dismiss into a motion for summary judgment under CPLR 3211(c), since plaintiffs did not agree to “charting a summary judgment course,” and the case did not involve a “purely legal question without any disputed issues of fact” … . Conversion of the motion prejudiced plaintiffs, who had no opportunity to respond to the contentions raised by defendant for the first time in reply … . …

“To maintain a cause of action to quiet title [to real property], a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative” (…see RPAPL 1515; RPAPL 1501[1]). Here, the complaint adequately alleges facts that, if established, could support a finding that plaintiffs attained equitable title arising from the contract of sale they allegedly entered into with codefendant … for 25% of the property, as well as their payment of the agreed price and exclusive and actual occupancy of an apartment in the property … . Davis v Augoustopoulos, 2021 NY Slip Op 05772, First Dept 10-21-21

 

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RETRIAL VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY; DEFENDANT HAD MADE A MOTION FOR A MISTRIAL WITH PREJUDICE AND DID NOT CONSENT TO THE DISCHARGE OF THE JURY (FIRST DEPT).

The First Department, reversing defendant’s conviction in the retrial and dismissing the indictment, determined the trial court’s failure to procure defendant’s consent to discharge the jury after defendant’s motion for a mistrial with prejudice triggered the protection against double jeopardy:

Double jeopardy bars a retrial except as to a defendant who has requested or consented to the mistrial … . Here, the record does not show that either defendant consented to a mistrial without prejudice. Defendants initially made general motions for a mistrial, but on the next day they expressly limited their motions to requests for a mistrial with prejudice. Accordingly, when the court announced its ruling shortly afterwards, it should have obtained defendants’ unequivocal consent before discharging the first jury or else have continued the trial with the same jury … . The retrial thus violated the constitutional prohibitions against double jeopardy, and these prohibitions require reversal of defendants’ convictions and dismissal of the indictment … . Defendants’ double jeopardy claim does not require preservation, although it may be expressly waived … . However, there was no such waiver here. People v Lantigua, 2021 NY Slip Op 05671, First Dept 10-19-21

 

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