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Right of First Refusal Not Triggered by Partition Action

In a partition action, the Fourth Department determined the agreement between the parties was a right of first refusal, not an option to purchase, which was not triggered by the partition action.  The court explained the operative law:

Plaintiff and Waite [one of the defendants] are tenants in common and acquired the property at issue by an executor’s deed pursuant to the settlement of their mother’s estate.  In settling that estate, plaintiff, Waite and the other named defendants signed a settlement agreement providing that plaintiff and Waite “agree to grant to [each of the other named defendants] the option to purchase the . . . property, in the event that [plaintiff and Waite], either jointly or severally, determine to sell, assign or transfer the . . . property to someone other than each other.  The option price shall be [$120,000] plus the costs of any improvements made by [plaintiff and Waite] to the premises subsequent to [their] purchase of the premises.  Said option may be prepared in recordable form by any or all of the [other named defendants] at their own cost and expense, and [plaintiff and Waite] will execute any said recordable option.  Upon receipt of an offer to purchase the premises, except from [each other], [plaintiff and Waite] shall notify each of the [other named defendants] then living, in writing of the proposed sale of the premises, and the [other named defendants] shall have sixty (60) days to exercise their option as granted herein.” * * *

We conclude that the right bestowed by the settlement agreement … is a right of first refusal, not an option to purchase, despite the use of the term “option” therein …, and thus that Supreme Court mistakenly treated the contractual right as an option to purchase.  “A right of first refusal is a dormant right that is triggered when an owner decides to sell the property to a third party at an agreed-upon price” …, and those are the applicable facts set forth in the settlement agreement.

We agree with Waite on her appeal that the court erred in determining that the contractual right was triggered upon plaintiff’s commencement of the instant action, for partition and sale.  It must first be determined in a partition action whether the property may be partitioned, i.e., divided among the owners in some fashion, without great prejudice to them, and “partition sale” is a secondary consideration only in the event that partition greatly prejudices the owners (see RPAPL 901 [1]…).  Thus, commencement of the partition action did not trigger the right of first refusal inasmuch as a partition, as opposed to a partition sale, would not result in a transfer of the property to a third party.  Furthermore, no offer of purchase from a third party triggered either the right of first refusal or the contractual obligation of plaintiff or Waite pursuant to the settlement agreement or recorded document. Tuminno v Waite…, 915, 4th Dept 10-4-13

 

 

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Statutory Moratorium On Rate Appeals Applied Retroactively to All Appeals Prior to April, 2015

The Fourth Department reversed Supreme Court and determined that a 201/2011 statutory moratorium on Medicaid reimbursement rate appeals filed by nursing homes applied retroactively to all appeals filed before April, 2015:

We agree with respondents that section 2808 (17) (b) and (c) [Public Health Law] apply retroactively to petitioners’ rate appeals.  The seminal case on whether statutes are to be applied retroactively is Majewski v Broadalbin-Perth Cent. Sch. Dist. (91 NY2d 577, 584), which provides, in relevant part, that “[i]t is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it” (see generally McKinney’s Cons Laws of NY, Book 1, Statutes § 51 [b]).  We conclude that the language of the statute requires that it be applied retroactively.  Public Health Law § 2808 (17) (b) states that, for the period from April 1, 2010 through March 31, 2015, “the [C]ommissioner shall not be required to revise certified rates of payment . . . for rate periods prior to April [1, 2015], based on consideration of rate appeals filed by residential health care facilities” in excess of the monetary cap.  While there is no explicit statement that the moratorium and cap shall apply to rate appeals filed before April 1, 2010, the statute specifically states that no revisions are required for any period before April 1, 2015 where the revision would emanate from a rate appeal filed by a residential health care facility.  In our view, the necessary implication of that language is that the statute applies to any rate appeal seeking a revision for any period before April 1, 2015, including any revisions resulting from rate appeals filed before the statute took effect. * * *

Inasmuch as the moratorium applies retroactively to petitioners’ rate appeals, petitioners do not have a clear legal right to relief, and their [Article 78 mandamus] petition must be denied… . Matter of Woodside Manor Nursing Home… v Shah…, 862, 4th Dept 10-4-13

 

Statements Constituted Opinion, Not Facts/Defamation Complaint Against Syracuse Basketball Coach Dismissed for Failure to State a Cause of Action

[Reversed by the Court of Appeals]

Over a two-justice dissent, the Fourth Department affirmed the dismissal of a defamation action at the pre-answer stage, finding that the statements attributed to the defendant in the complaint constituted opinion, not fact.  The defendant (coach of the Syracuse University basketball team) characterized allegations made by plaintiff (accusing defendant’s friend and long-time assistant coach, Bernie Fine, of sexual improprieties) as lies. Taking the statements attributed to defendant as a whole, the Fourth Department determined they amounted to opinion and were therefore not actionable:

“Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation . . . Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue” … .  “The issue at this early, preanswer stage of the litigation is whether plaintiff[s’] [complaint] sufficiently allege[s] false, defamatory statements of fact rather than mere nonactionable statements of opinion” … .  “Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … .  Although the Court of Appeals has acknowledged that “[d]istinguishing between opinion and fact has ‘proved a difficult’ task” …, it has provided three factors for courts to consider in determining whether the alleged defamatory statements are actionable statements of fact or nonactionable statements of opinion ….

We agree with plaintiffs that defendant’s statements that they lied and that they did so out of a financial motivation are statements of fact when viewed in light of the first two factors set forth in Mann, i.e., those statements use specific language that “has a precise meaning which is readily understood” and are “capable of being proven true or false” ….  We note in particular that, when defendant was asked during the syracuse.com interview what plaintiff’s “possible motivation would be to tell his disturbing story at this time,” he responded that plaintiff was “trying to get money.  He’s tried before.  And now he’s trying again.”  Although that statement may be interpreted as implying that defendant knew facts that were not available to the reader…, we are nevertheless mindful that we “must consider the content of the communication as a whole, as well as its tone and apparent purpose and in particular should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about . . . plaintiff” … .  Furthermore, we must “avoid[] the ‘hypertechnical parsing’ of written and spoken words for the purpose of identifying ‘possible fact[s]’ that might form the basis of a sustainable libel action” … .

Defendant’s statements also must be viewed in light of the third factor set forth in Mann, i.e., “whether either the full context of the communication in which the statement[s] appear[] or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” … .  Defendant additionally stated in the interview with syracuse.com:  “So, we are supposed to do what? Stop the presses 26 years later?  For a false allegation?  For what I absolutely believe is a false allegation?  I know [plaintiff is] lying about me seeing him in his hotel room.  That’s a lie.  If he’s going to tell one lie, I’m sure there’s a few more of them . . . I have never been in Bernie Fine’s hotel room in my life . . . Now, could I have once . . . one time?  I have a pretty good recollection of things, but I don’t ever recollect ever walking into Bernie Fine’s hotel room.  Ever.”  In his interview with ESPN, defendant stated:  “I know this kid, but I never saw him in any rooms or anything . . . It is a bunch of a thousand lies that [plaintiff] has told.  You don’t think it is a little funny that his cousin . . . is coming forward? . . . He supplied four names to the university that would corroborate his story.  None of them did . . . [T]here is only one side to this story.  He is lying.”

We conclude that defendant’s statements demonstrate his support for Fine, his long-time friend and colleague, and also constitute his reaction to plaintiff’s implied allegation, made days after Penn State University fired its long-term football coach, that defendant knew or should have known of Fine’s alleged improprieties.  We therefore conclude that the content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ”… . Davis and Lang v Boeheim…, 836, 4th Dept 10-4-13

 

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Separation Agreement Found Unconscionable

The Fourth Department affirmed Supreme Court’s vacation of a separation agreement finding insufficient evidence the agreement was signed under duress but determining the terms of the agreement were unconscionable:

“ ‘Judicial review [of separation agreements] is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions’ ” … . “[S]eparation agreements will be scrutinized ‘to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity’ ” … .  “A separation agreement ‘may be vacated if it is manifestly unfair to one party because of the other’s overreaching or where its terms are unconscionable’ ” … .

We agree with defendant that plaintiff did not sign the agreement under duress.  Plaintiff’s allegations that defendant threatened to evict her from the marital residence if she did not sign the agreement and that he threw the agreement at her are not substantiated by proof sufficient to justify setting it aside … .  Further, even accepting plaintiff’s allegation that defendant persistently urged her to sign the agreement, such conduct does not constitute duress, particularly inasmuch as plaintiff signed the agreement after defendant revised it in accordance with her suggested changes.

We conclude, however, that the court properly determined that the agreement was “ ‘one such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other’ ” … .  As defendant correctly concedes, the agreement gives him almost all of the marital property, including his pension and retirement assets, and we note that the value of the pension and retirement assets is not apparent from the record because defendant failed to include a copy of his net worth statement.  The agreement further provides that plaintiff may not seek maintenance and, most troubling under the circumstances of this case, that plaintiff waived her right to seek child support. Dawes v Dawes, 886, 4th Dept 10-4-13

 

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Malpractice Action Against Pharmacy Dismissed; Applicable Standard of Care and Insufficiency of Expert Affidavit Explained

In affirming the dismissal of a malpractice complaint against a pharmacy (Rite Aid) for failure to state a cause of action, the Fourth Department explained the standard of care imposed upon a pharmacy and the necessary contents of an expert affidavit alleging the profession has established a different standard of care:

With respect to the sufficiency of the complaint before us, we note that in New York “ ‘[t]he standard of care which is imposed on a pharmacist is generally described as ordinary care in the conduct of his [or her] business.  The rule of ordinary care as applied to the business of a druggist means the highest practicable degree of prudence, thoughtfulness and vigilance commensurate with the dangers involved and the consequences which may attend inattention’ ” … .  “Generally, a pharmacist cannot be held liable for negligence in the absence of an allegation that he or she failed to fill a prescription precisely as directed by the physician or was aware that the customer had a condition that would render the prescription of the drug at issue contraindicated” … .  Here, because plaintiff failed to allege that the dosage “fell below or exceeded the medically acceptable range of dosages that should be provided under any circumstance” …, that Rite Aid did not follow the prescribing physician’s directions, or that Rite Aid was aware that the drug was contraindicated for plaintiff, the court properly concluded that the complaint fails to state a cause of action for negligence on the part of Rite Aid … .

Contrary to plaintiff’s further contention, she failed to establish through an expert’s affidavit that the pharmacy profession itself has created a different standard of care from that set forth herein.  In support of that contention, plaintiff submitted the affidavit of a pharmacist who opined that “[t]he dose [of prednisone prescribed for plaintiff] triggers the need to contact the prescribing physician to double check the dosage and to notify the patient of the very high dose and risks associated with that dose.”  “ ‘[O]rdinarily, the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would’ [be sufficient to allege a violation of a professional standard of care] .

. . Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to” establish a violation of a standard of care … . Thus, an expert’s affidavit is insufficient to establish that a standard of care exists where it is “devoid of any reference to a foundational scientific basis for its conclusions” … .  Here, the expert cites no industry standard, treatise or other authority in support of his opinion regarding the standard of care …, and plaintiff therefore failed to establish that the pharmacy profession itself imposes a different standard of care from that set forth in the applicable case law. Burton v Sciano, et al, 837, 4th Dept 10-4-13

 

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Question of Fact About Whether Village Negligent in Maintaining Sewer System

The Fourth Department reversed Supreme Court and determined plaintiffs had raised a question of fact about whether the defendant village was negligent in maintaining the sewer system resulting in sewage leaking into plaintiffs’ basement:

We conclude that issues of fact exist whether defendant “received ‘notice of a dangerous condition or ha[d] reason to believe that the [sewer] pipes ha[d] shifted or deteriorated and [were] likely to cause injury’ ” and whether defendant neglected to “ ‘make reasonable efforts to inspect and repair the defect’ ” … .  The record establishes that plaintiffs made numerous complaints to defendant for many years prior to the incident at issue and that defendant did not consistently keep written records of the complaints it received with respect to the sewer lines.  Mason v Village of Neward, 856, 4th Dept. 10-4-13

 

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Disclosure Appropriate in Lead Paint Case, Physician-Patient Privilege Waived

In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not entitled to full disclosure of records based on the physician-patient privilege.  The Fourth Department determined the privilege had been waived:

In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any related privileges with respect to the records sought, and that those records may be material and necessary to the defense of the action … . There may be information in plaintiff’s records, however, that is irrelevant to this action, and there are legitimate concerns with respect to “the unfettered disclosure of sensitive and confidential information” contained in those records … . Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433, 1434), we modify the order by denying defendants’ motion and cross motion to the extent that they seek authorizations for the full disclosure of the records sought and by granting plaintiff’s cross motion to the extent that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera review and the redaction of any irrelevant information… . Adams v Daughtery…, 907, 4th Dept 10-4-13

 

Abutting Landowner Not Liable for Sidewalk Slip and Fall

In affirming summary judgment to defendants (abutting landowners) in a sidewalk slip and fall case, the Fourth Department explained:

“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions [on a] public sidewalk[] is placed on the municipality and not the abutting landowner” … .  That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk … .

It is undisputed that the applicable town code does not impose liability on defendants for injuries to users of the public sidewalk abutting their property.  Furthermore, the testimony and affidavits submitted by defendants in support of their motion established that the sidewalk was not constructed in a special manner for their benefit, that they did not affirmatively create the defect, and that they did not negligently construct or repair the sidewalk.  Notably, defendants’ submissions established that the sidewalk was constructed by the builder of defendants’ development, who laid it in continuation of the sidewalk on the properties neighboring defendants’ property in both directions, and that defendants did not request that the sidewalk be constructed and had no input into its construction.  Contrary to plaintiffs’ further contention, defendants established that they did not affirmatively create the defect by any alleged special use of the sidewalk as a driveway… . Schroeck v Gies…, 1021, 4th Dept 10-4-13

 

Summary Judgment for Out of Possession Landlord in Slip and Fall Case

In a slip and fall case, the Fourth Department determined the defendant out-of-possession landlord (McDonald’s) had met its burden demonstrating it was not responsible for snow and ice removal:

McDonald’s met its initial burden of establishing its entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact … .  McDonald’s submitted evidence demonstrating that it, as a franchisor, lacked day-to-day control over the franchisee …, and that it was an out-of-possession landlord who did not retain control over the premises and was not contractually obligated to repair or maintain the premises… . Maisano v McDonald’s …, 994, 4th Dept 10-4-13

 

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Revocation of Pistol Permit (After Acquittal) Not Supported by Evidence

The Fourth Department, in an Article 78 proceeding initiated in the appellate court, annulled the revocation of petitioner’s pistol permit.  The permit was suspended temporarily when petitioner was charged with menacing but was revoked after an acquittal:

We agree with petitioner that the determination is arbitrary and capricious, and constitutes an abuse of discretion inasmuch as the record from the hearing is devoid of any evidence upon which respondent could have based his determination … .  We further agree with petitioner that his due process rights were violated inasmuch as the record from the hearing does not demonstrate that he was afforded the opportunity to review the alleged documentation upon which respondent based his determination … .  We therefore annul the determination.  We note, however, that our determination does not preclude the commencement of a new revocation proceeding… . Matter of Curts v Randall, 890, 4th Dept 10-4-13

 

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