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Family Court Failed to Apply Equitable Distribution to Marital Assets and Failed to Give Wife Credit for Enhanced Earnings Generated by Husband’s Master’s Degree

The Fourth Department determined the trial court erred in failing to equitably distribute all or portions of an investment account, a 403-b deferred compensation account and preretirement death benefits.  In addition the Fourth Department determined the wife was entitled to a portion of her husband’s enhanced earnings from his master’s degree.  The underlying principles and authority for the wife’s entitlement to these assets and earnings are described in the decision.  Lauzonis v Lauzonis, CA 12-00188, 209, 4th Dept, 4-26-13

 

Father’s Consent to Adoption Not Required

In affirming Family Court’s determination the father’s consent to adoption was not required, the Fourth Department explained the analytical criteria:

“[T]here are two steps in determining whether the biological father’s consent may be dispensed with in a proceeding seeking approval of the adoption of his child[ren]” … “Using the guidelines set forth in Domestic Relations Law § 111 (1) (d), [Family C]ourt must first decide whether the father has demonstrated a substantial relationship with his child[ren] conferring [on him] the right to consent” to the adoption ….“Only after the [biological] father establishes his right of consent to the adoption . . . does the court proceed to determine [pursuant to section 111 (2) (a)] whether he has forfeited that right by evincing ‘an intent to forego his . . . parental . . . rights and obligations as manifested by his . . . failure for a period of six months to visit the child[ren] and communicate with the child[ren] or person having legal custody of the child[ren], although able to do so’ ” ….  Matter of Adoption…, CAF 12-00393, 33, 4th Dept, 4-26-13

 

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Criteria for Negligent Misrepresentation Action

In reversing the denial of defendant’s motion to dismiss an action for negligent misrepresentation concerning the underwriting of mortgage loans, the Fourth Department determined plaintiff had not demonstrated the requisite “privity-like” relationship:

A cause of action for negligent misrepresentation must allege “ ‘(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information’ ”… . In this case, we agree … that plaintiffs failed to allege the requisite special relationship between it and plaintiff …to state a cause of action for negligent misrepresentation … .  Flaherty Funding Corporation … v Johnson …, CA 12-02018, 427, 4th Dept, 4-26-13

 

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Plaintiff Need Not Exclude Every Other Possible Cause of an Accident to Demonstrate Proximate Cause

In reversing the grant of summary judgment to the defendant because of an alleged inability of the plaintiff to establish proximate cause, the Fourth Department determined the plaintiff need not exclude every possible cause of the accident other than the defendant’s acts or omissions:

In order to establish proximate cause, “[p]laintiffs need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence . . . A plaintiff need only prove that it was more likely . . . or more reasonable . . . that the alleged injury was caused by the defendant’s negligence than by some other agency” … . Furthermore, it is well settled that, in seeking summary judgment dismissing a complaint, a defendant “must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent’s proof” … .  New York Municipal Insurance Reciprocal… v Casella Construction, Ind, CA 12-02094, 399, 4th Dept, 4-26-13

 

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Plaintiff Was Unable to Raise a Question of Fact About Whether Her Injuries Were Related to a Preexisting Condition

Over a dissent, the Fourth Department reversed the motion court’s denial of summary judgment to the defendant in an automobile-accident personal injury action.  The Fourth Department determined plaintiff had not raised a question of fact in response to the proof submitted by defendant that her injuries were linked to a preexisting condition, and not the accident:

“[E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury—such as a gap in treatment, an intervening medical problem or a preexisting condition—summary dismissal of the complaint may be appropriate” …. Here, defendants met their initial burden on the motion with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories by offering “persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition” … .  Kwitek… v Seier…, CA 12-01607, 352, 4th Dept, 4-26-13

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Question of Fact About Defect In Diving Board Precluded Summary Judgment Based Upon Primary Assumption of Risk

Plaintiff was injured when he slipped from a diving board at defendant’s pool.  In finding a question of fact had been raised about whether there existed a concealed or unreasonably increased risk on the surface of the diving board, the Fourth Department explained the applicable law:

The doctrine of primary assumption of risk “generally constitutes a complete defense to an action to recover damages for personal injuries . . . and applies to the voluntary participation in sporting activities” .. . Under that doctrine, “a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions[] and risks [that] are inherent in the activity” … . The owner of recreational premises owes a duty “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . A plaintiff, however, will not be deemed to have consented to “concealed or unreasonably increased risks” … . Thus, in assessing whether the relevant duty has been breached, it must be determined “whether the conditions caused by the defendant[’s] negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” … . Menter v City of Olean, CA 12-01304, 308, 4th Dept, 4-26-13

 

Leave To Amend Complaint Should Have Been Granted

The Fourth Department reversed the trial court’s denial of a motion to amend a complaint, noting:

“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit… “.

… A “court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … .  Holst…v Liberatore…, CA 12-01575, 243, 4th Dept, 4-26-13

 

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2 ½ Inch Drop in Pavement Was Not Proximate Cause of Plaintiff’s Loss of Control of Her Vehicle

The Fourth Department affirmed the Court of Claims’ determination that a 21/2 inch drop off in the shoulder of a road was not the proximate cause of a driver’s losing control of her vehicle.  The doctrine of “qualified immunity” in connection with road defects is explained. Marrow… v State…, CA 12-00974, 241, 4th Dept, 4-26-13

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Question of Fact Raised About Whether Release Signed in Anticipation of a Skydiving Course Precluded Personal Injury Action

Plaintiff had signed a release of liability in connection with a one-hour skydiving course.  Before the course could be given, the plane crashed and plaintiff was injured.  In moving to dismiss the complaint, the defendants argued that General Obligations Law 5-326, which renders releases issued by “places of recreation” void, did not apply.  The motion court denied the motion to dismiss and the Fourth Department affirmed:

Defendants assert that section 5-326 does not apply here because [defendant] is an instructional facility, rather than a recreational facility. Where a facility is “used for purely instructional purposes,” section 5-326 is inapplicable even if the instruction that is provided relates to an activity that is recreational in nature … . “In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility” …. On a motion to dismiss pursuant to CPLR 3211, a court “may . . . consider affidavits and other evidentiary material to ‘establish conclusively that plaintiff has no cause of action’ ” … We conclude that [defendant’s] facility is not used purely for instructional purposes based upon our review of [defendant’s] certificate of incorporation, including the statement of purpose contained therein; the services for which plaintiff paid a fee, i.e., whether she paid for a course of instruction or for use of the facilities; as well as the other evidence submitted by defendants. Thus, defendants have failed to establish as a matter of law that General Obligations Law § 5-326 does not apply here …  and have failed to establish conclusively that plaintiff has no cause of action. Tiede v Frontier Skydivers, Inc, CA 12-01861, 216, 4th Dept, 4-26-13

 

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Car Dealership Was Not the Owner of a Car Lent to a Customer While Customer’s Vehicle Was Repaired—Therefore Dealership Was Not Vicariously Liable for Injury Caused by the Driver of the Loaned Car

In reversing the motion court and granting summary judgment to defendant car dealership, the Fourth Department (over a dissent) determined that defendant dealership was not the owner of the vehicle involved in the accident, and therefore could not be held vicariously liable under Vehicle and Traffic Law 388.  Defendant’s employee (the daughter of the owner) agreed to lend her personal car to one Leederman while Leederman’s vehicle was being fixed at the dealership.  All of defendant’s “loaner cars” were in use and the dealership’s owner asked his daughter to lend her car to Leederman.  Leederman, in turn, let defendant Trummer use the car.  Trummer was driving when the accident occurred.  The Fourth Department wrote:

Pursuant to Vehicle and Traffic Law § 388, an owner of a motor vehicle is vicariously liable for the negligent use or operation of such vehicle by anyone operating the vehicle with the owner’s express or implied permission (see § 388 [1] …).The term “owner” is defined as “[a] person, other than a lien holder, having the property in or title to a vehicle . . . The term includes a person entitled to the use and possession of a vehicle . . . subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle . . . having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days” (§ 128; see § 388 [3]).

We agree with defendant that it established as a matter of law that it was not the owner of the vehicle involved in the motor vehicle accident at issue, and that plaintiffs failed to raise a triable issue of fact with respect to ownership of that vehicle.  Monette v Trummer, et al, CA 12-01274, 79, 4th Dept, 4-26-13

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