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MOTOR VEHICLES REGULATION WHICH ALLOWS A LIFETIME DRIVING BAN TO BE IMPOSED UPON DRIVERS WITH MULTIPLE DWI CONVICTIONS IS NOT VOID FOR VAGUENESS.

The Fourth Department determined the regulation which allows the commissioner of motor vehicles to impose a lifetime driver’s license revocation for persons with multiple driving while intoxicated convictions was not unconstitutionally vague:

… [T]he regulation does not give respondent “unfettered discretion” to deny an application. Section 136.5 formalized the manner in which the Commissioner would exercise her discretion by “ensur[ing] that her discretion is exercised consistently and uniformly, such that similarly-situated applicants are treated equally” … . Additionally, the regulation puts the public on notice of respondent’s general policy with respect to relicensing a person whose driver’s license has been revoked for multiple alcohol- or drug-related transgressions … . In petitioner’s case, he faces a lifetime ban because he has at least five such convictions or incidents, as defined in the regulation … . Nevertheless, the Commissioner reserved the discretion to deviate from her general policy in “unusual, extenuating and compelling circumstances” … . That exception ensures that respondent has the flexibility to grant an application for relicensing where extraordinary circumstances render the application of the general policy inappropriate or unfair … . Thus, reading the language of the challenged exception within the context of the regulation as a whole, we conclude that 15 NYCRR 136.5 (d) is not unconstitutionally vague. Matter of Gurnsey v Sampson, 2017 NY Slip Op 05350, 4th Dept 6-30-17

 

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DEFENDANT DEMONSTRATED NO PARTNERSHIP HAD BEEN FORMED, SUMMARY JUDGMENT IN THIS ACTION ALLEGING BREACH OF A PARTNERSHIP AGREEMENT PROPERLY GRANTED. ​

The Fourth Department, over a dissent, determined summary judgment was properly granted to defendant in this breach of a partnership agreement action. Defendant demonstrated no partnership had been formed:

“A partnership is an association of two or more persons to carry on as co-owners a business for profit” (Partnership Law § 10 [1]). Where, as here, there is no written partnership agreement between the parties, a court looks to the parties’ conduct, intent, and relationship to determine whether a partnership existed in fact … . The relevant factors are (1) the parties’ intent, whether express or implied; (2) whether there was joint control and management of the business; (3) whether the parties shared both profits and losses; and (4) whether the parties combined their property, skill, or knowledge … . No single factor is determinative; a court considers the parties’ relationship as a whole … .

… [W}e must consider whether the parties expressly or implicitly intended to become partners … . Evidence concerning the parties’ preliminary negotiations bears directly on their intent …  In support of his motion, defendant submitted, inter alia, the deposition testimony of plaintiff, the affidavit of defendant, invoices, a lease, and the parties’ correspondence documenting their contract negotiations. That evidence establishes that the parties never shared the intent to become partners. In June 2004, defendant wrote an email to plaintiff suggesting that they discuss “how [they] might be able to work together.” Plaintiff responded that a partnership “might work” and expressed hope that the parties could come to a “workable agreement.” Thereafter, the parties met in person and plaintiff explained that he wanted a 50% share in a partnership. Plaintiff later testified at his deposition that, upon hearing that proposal, defendant had “a look on his face like maybe he wasn’t expecting that,” and did not respond.

Although plaintiff testified that he interpreted defendant’s silence as an agreement to an equal partnership, the documentary evidence undermines any such assumption. * * * … [T]he evidence demonstrates that the parties never shared the intent to enter into a partnership, although they initially had explored the possibility of one. Hammond v Smith, 2017 NY Slip Op 05337, 4th Dept 6-30-17

 

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QUESTION OF FACT WHETHER PLAINTIFF’S LANE CHANGE CONSTITUTED A NON-NEGLIGENT EXPLANATION FOR THIS REAR-END COLLISION, PLEA TO FOLLOWING TOO CLOSELY IS NEGLIGENCE PER SE ONLY IF THE VIOLATION IS UNEXCUSED.

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted. Defendant raised a question of fact whether the cause of the accident was plaintiff’s sudden lane change. The fact that defendant pled guilty to a traffic violation, following too closely, would constitute negligence per se only if unexcused:

Plaintiff … submitted the deposition testimony of defendant, who stated that he did not see plaintiff’s vehicle until immediately before the accident, when plaintiff moved from the middle lane to the right lane and slammed on his brakes in an instant or quickly, i.e., plaintiff’s action was not a slow and cautious movement to which defendant could react … . Defendant explained that he had not seen plaintiff’s vehicle before the collision because he had been paying attention to the road in front of him and, when plaintiff engaged in his maneuver (changed lanes), defendant slammed on his brakes and tried to steer into the shoulder to avoid the accident, which caused the back end of the trailer that was attached to the truck to swing out, and the left corner of the truck struck plaintiff’s vehicle. Based on the foregoing, we conclude that plaintiff “failed to meet his initial burden of establishing his entitlement to judgment as a matter of law inasmuch as he submitted the deposition testimony in which [defendant] provided a nonnegligent explanation for the collision,” namely, that plaintiff caused the collision when he suddenly changed lanes in response to slowing traffic in the middle and left lanes of the highway and abruptly stopped in the right lane in front of defendant … .

… [W]e reject plaintiff’s contention that he established defendant’s negligence as a matter of law by submitting evidence of defendant’s guilty plea of following too closely (Vehicle and Traffic Law § 1129 [a]). “It is well settled that the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se’ ” … . “Rather, it is the unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se’ ” … . Here, upon defendant’s explanation, the trier of fact could excuse the violation on the ground that plaintiff cut in front of defendant and immediately stopped, thereby failing to provide defendant with adequate time to create the “reasonable and prudent” distance between the vehicles that is required by the statute … . Gardner v Chester, 2017 NY Slip Op 05336, 4th Dept 6-30-17

 

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CONCLUSORY ALLEGATIONS THAT THE LANDLORD WAS AN OWNER OF OR A PARTNER IN THE BUSINESS WHICH LEASED THE PREMISES WHERE PLAINTIFF’S DECEDENT WAS INJURED SHOULD NOT HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department, modifying Supreme Court, over a dissent, determined conclusory allegations that the landlord (Miranda) was an owner of the business (Molly’s Pub)) in which plaintiff’s decedent was injured were insufficient to survive a motion to dismiss in this wrongful death action:

We agree with Miranda … that the court erred in denying his motion to dismiss the complaint against him pursuant to CPLR 3211 (a) (7), and we therefore modify the order accordingly. The conclusory allegations in the complaint alleging liability on the same grounds as those alleged against the [pub] defendants based upon the alleged ownership or partnership interest in the operation of Molly’s Pub are insufficient to state a cause of action against him. … Miranda submitted the lease, which provides that he shall not be liable for injury to persons or for any defects in the building. He also submitted an affidavit in which he stated that he has no ownership interest in Molly’s Pub, that did he not exercise any control over the operation of Molly’s Pub … , that he had no actual or constructive notice of a dangerous or defective condition on the premises and that he was “merely an out-of-possession landlord.” …

‘[W]hile it is axiomatic that a court must assume the truth of the complaint’s allegations, such an assumption must fail where there are conclusory allegations lacking factual support . . . Indeed, a cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations” … . Here, plaintiff failed to allege any facts to support his allegation that Miranda had an ownership or partnership interest in the operation of Molly’s Pub. Sager v City of Buffalo, 2017 NY Slip Op 05340, 4th Dept 6-30-17

 

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LEAVE TO FILE LATE NOTICE OF CLAIM FOR HUSBAND’S DERIVATIVE CLAIM SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim with respect to husband’s derivative claim stemming from wife’s injuries should have been granted. Because the county was deemed to have knowledge of the wife’s claim within 90 days, the county must also be deemed to have had timely knowledge of the derivative claim:

Here, respondent contends that it did not receive actual knowledge of the facts constituting the husband’s claim because it did not receive knowledge of the injuries or damages claimed by the husband. We reject that contention. “[C]ourts have granted leave to serve a supplemental or amended notice of claim to add a derivative cause of action for loss of consortium . . . where such claim results from the same facts as were alleged in a timely and otherwise admittedly valid notice of claim for personal injuries’ “… . Indeed, courts have generally recognized that derivative causes of action “[are] predicated upon exactly the same facts” as the injured party’s claims … . As a result, where it has been determined that the respondent received timely notice of the injured claimant’s claims, “there can be no claim of prejudice to respondent” resulting from a late notice of a derivative claim (id.).

Although we recognize that claimants did not file a timely notice of claim for the injuries sustained by claimant Melody L. Darrin (wife), the court’s determination to grant the application with respect to her suggests that the court determined that respondent had actual knowledge of the facts underlying her claim. Inasmuch as the husband’s derivative claim is “predicated upon exactly the same facts” as the wife’s claims … , we discern no rational basis upon which the court could have granted the application with respect to the wife but not the husband … . Matter of Darrin v County of Cattaraugus, 2017 NY Slip Op 05352, 4th Dept 6-30-17

 

ALTHOUGH DEFENDANT’S STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) CONDITIONS WERE VIOLATED, THE VIOLATIONS PERTAINED TO DRUG USE, NOT SEXUAL MISCONDUCT, EVIDENCE LINKING DEFENDANT’S COCAINE USE TO SEXUAL AROUSAL WAS DEEMED SUFFICIENT TO WARRANT CIVIL COMMITMENT.

The Fourth Department, over a substantive dissent, determined the evidence was sufficient to support the revocation of defendant sex offender’s strict and intensive supervision and treatment (SIST) status and the imposition of civil commitment (as a dangerous sex offender). The SIST violations related to cocaine use, not sexual misconduct. Evidence linked defendant’s cocaine use to sexual arousal. The dissent argued such proof was insufficient because there was no showing defendant’s use of cocaine led to his inability to control (as opposed to difficulty in controlling) his sexual behavior:

Here, petitioner’s expert testified that respondent suffers from antisocial personality disorder, substance abuse disorder, and severe cocaine and alcohol use disorder. Respondent’s instant SIST violations included the use of cocaine on at least two occasions within one month of release to the community. Respondent has violated the conditions of SIST release on two prior occasions, and those violations also involved cocaine use. Petitioner’s expert described respondent’s cocaine use upon his most recent release to be of an “escalating” nature, and opined that respondent is unable to curb his craving for cocaine and has demonstrated a lack of cooperation with, and resentment toward, substance abuse and sex offender treatment. Petitioner’s expert further opined that respondent’s sex offending behavior is “linked” with his cocaine usage and his sexual arousal has become conditioned to his cocaine usage. Moreover, every examiner who has evaluated respondent has concluded that his sex offending behavior is linked to his substance abuse, and the hearing record contains numerous admissions by respondent that his sex offending behavior is linked to his cocaine use. Petitioner’s expert testified that, based on his Static-99 scores, respondent was at a moderate to high risk of recidivism, and respondent’s score on the Acute-2007 placed him in the high range risk of recidivism. Although respondent’s expert testified that respondent had “put some distance” between his cocaine use and his sex offending behavior, respondent’s expert also agreed that “[t]here’s no doubt that one could lead to the other.” We thus conclude that petitioner established by the requisite clear and convincing evidence that respondent’s substance abuse was linked to his sex offending behavior and that respondent is a dangerous sex offender requiring confinement … . Matter of State of New York v William J., 2017 NY Slip Op 05335, 4th Dept 6-30-17

 

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INSURER’S DISCLAIMER OF COVERAGE IN THIS SLIP AND FALL CASE IS NOT SUFFICIENT PROOF THE TENANT FAILED TO PROCURE THE INSURANCE REQUIRED BY THE LEASE, SUMMARY JUDGMENT ON THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined summary judgment on the breach of contract cause of action should not have been granted. The property owner (the church) in this parking lot slip and fall case alleged that the lessee (Stepping Stones) failed to procure the insurance required by the lease. That allegation was based on the insurer’s disclaimer of coverage. The Fourth Department noted that the disclaimer could be erroneous and was therefore not proof of a breach of the lease:

In denying Stepping Stones’s motion in part and sua sponte granting summary judgment to the Church defendants on the breach of contract claims, the court reasoned that the Church defendants were entitled to judgment on the ground that, “[i]f the insurance carrier provided by Stepping Stones fails to cover the broad coverage demanded by the Lease, then Stepping Stones has breached the Lease agreement.”

On appeal, Stepping Stones addresses only the court’s determination with respect to the breach of contract claims. We agree with Stepping Stones that the court erred in granting summary judgment to the Church defendants on those claims, and we therefore modify the order accordingly. The mere fact that the insurance carrier disclaimed coverage for the accident does not establish as a matter of law that Stepping Stones failed to obtain the necessary coverage. It is possible that the insurance carrier’s disclaimer was improper, and that possibility may be explored by way of a declaratory judgment action … . Strong v St. Thomas Church of Irondequoit, 2017 NY Slip Op 05333, 4th Dept 6-30-17

 

ALTHOUGH NO SPECIAL RELATIONSHIP EXISTED BETWEEN BROKER AND PLAINTIFF, CAUSE OF ACTION BASED UPON PLAINTIFF’S SPECIFIC REQUEST FOR FLOOD INSURANCE (WHICH WAS NOT INCLUDED IN THE POLICY) SURVIVED SUMMARY JUDGMENT.

The Fourth Department determined summary judgment was properly awarded to the insurance broker (First Niagara) because no special relationship existed with plaintiff. Plaintiff specifically asked defendant whether plaintiff had flood insurance and further stated plaintiff wanted flood insurance. Defendant never responded. After flood damage occurred plaintiff learned the policy did not include flood insurance. Although no special relationship existed, plaintiff’s cause of action based upon the specific request for flood insurance survived summary judgment:

“As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so” … . “Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide[ ] or direct a client to obtain additional coverage” … . “[A] special relationship may arise where (1) the agent receives compensation for consultation apart from payment of the premiums . . . (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent . . . ; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on’ “… .

Here, First Niagara met its initial burden of establishing that no special relationship existed, and plaintiff failed to raise a triable issue of fact  … . Specifically, First Niagara submitted evidence that it received no compensation from plaintiff over and above the commissions it received for the insurance policies it had procured, that plaintiff did not use First Niagara as its exclusive agent, and that plaintiff retained final decision-making authority over what coverage to obtain … . Thus, even accepting plaintiff’s allegations as true, we conclude that “the record in the instant case presents only the standard consumer-agent insurance placement relationship” … .

We further conclude, however, that First Niagara failed to tender “sufficient evidence to eliminate any material issues of fact from the case” relating to plaintiff’s specific request for flood insurance coverage … . … [T]here are triable issues of fact concerning whether plaintiff made a specific request for flood insurance coverage prior to the flood event … . Petri Baking Prods., Inc. v Hatch Leonard Naples, Inc., 2017 NY Slip Op 05338, 4th Dept 6-30-17

 

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PROOF OF STANDING DID NOT MEET CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Fourth Department, reversing Supreme Court, determined the bank’s proof in this foreclosure action did not meet the criteria of the business records exception to the hearsay rule:

We agree with defendants that the affidavit submitted by plaintiff in support of its motion was insufficient to establish standing. The Caliber employee who authored the affidavit stated that Caliber maintains plaintiff’s books and records pertaining to the mortgage account; plaintiff had physical possession of the original note before the action was commenced and remained in physical possession of the original note as of the date of the motion; and he was personally familiar with Caliber’s record-keeping practices. However, plaintiff failed to demonstrate that its records pertaining to defendants’ account were admissible as business records (see CPLR 4518 [a]), inasmuch as the affiant did not swear that he was personally familiar with plaintiff’s record-keeping practices and procedures… .

Contrary to plaintiff’s contention, the mere attachment of a copy of the note to the verified complaint does not demonstrate that plaintiff had physical possession of the original note when the action was commenced … , and thus is insufficient to establish standing. The Bank of N.Y. Mellon v Anderson, 2017 NY Slip Op 05349, 4th Dept 6-30-17

 

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HEARING NECESSARY ON MOTHER’S PETITION TO CHANGE THE SURNAME OF ONE OF THE CHILDREN, MATTER REMITTED.

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on mother’s petition to change the surname of one of their children. The petition was opposed by father:

“Civil Rights Law § 63 authorizes an infant’s name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change” … . With respect to infants, the statute provides in relevant part, that, if the court is “satisfied . . . that the petition is true, . . . that there is no reasonable objection to the change of name proposed, and . . . that the interests of the infant will be substantially promoted by the change,” the court may grant the petition (§ 63). With respect to the interests of the infant, “the issue is not whether it is in the infant’s best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his [or her] surname” … . Such a determination “requires a court to consider the totality of the circumstances” … .

Contrary to petitioner’s contention, respondent raised reasonable objections to the petition … . Petitioner is seeking to change the sons’ names to a surname that is not used by either parent or the sons’ half-sibling … . While “neither parent has a superior right to determine the surname of the child,” we have stated that “a father has a recognized interest in having his child bear his surname” … . Respondent also contends that an order granting the petition will have a deleterious effect on his relationship with his sons … . Although petitioner contends that the sons desire the name change, that contention is based on hearsay, and respondent challenges that contention. Inasmuch as the court did not conduct an in camera interview with them, we cannot resolve that disputed issue on this record. In any event, the sons are now of sufficient age and maturity to express their preference for a particular surname, and they have a right to be heard … . Matter of Niethe (McCarthy–DePerno), 2017 NY Slip Op 05371, 4th Dept 6-30-17

 

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