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Pre-Closing Inspection Disallowed Because There Was No Mention of a Pre-Closing Inspection in the Purchase Contract

The Fourth Department determined a purchase contract which contained a merger clause prohibiting oral modifications and which did not have a provision allowing a pre-closing inspection did not provide the buyer with the right to inspect the property.  Under the rules for the interpretation of an unambiguous contract, “ ‘courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include’ . ..”.  Thirty One Development, LLC v Jeffery Cohen, et al, 161 CA 11-02577, 4th Dept. 3-15-13

 

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Buyer Not Entitled to “Loss of Bargain” Damages for Breach of Purchase Contract

The contract for the sale of a parcel of real property included the following: “It is the understanding of the parties that at the present time, seller is not in title to the property.  Seller is a first mortgage holder and the mortgage is in default.  In the event that the title holder does not agree to signing over a deed in lieu of foreclosure, the seller will institute foreclosure proceedings with the courts.  Seller shall be able to provide good and clear title in accordance with this contract.” The defendant-seller, however, was outbid at the foreclosure sale and could not provide the buyer with good and clear title.  In the lawsuit brought by the buyer, the buyer sought so-called “loss of bargain” damages.  In affirming the trial court’s denial of buyer’s request for “loss of bargain” damages, the Fourth Department explained:

It is well settled that “[t]he vendee in a contract for the sale of land is not ordinarily entitled, upon breach, on failure to convey, to recover of the vendor damages measured by the goodness of his bargain or the financial benefit which would result from performance, and it is only when the vendor is for some reason chargeable with bad faith in the matter that recovery beyond nominal damages on that account can be had” … .Thus, “[i]f a vendee knows of the inability of his vendor to convey the title he has undertaken to convey, the vendee’s damages are not measurable by the loss of his bargain” … .  Khanjani v Schreiber, 141, CA 12-00494, 4th Dept. 3-15-13

 

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Old Age, Infirmity, Dementia and Medical Opinion Did Not Demonstrate Lack of Testamentary Capacity

In affirming the dismissal of objections to a will, the Fourth Department explained that proof the decedent suffered from old age, infirmity and dementia was not necessarily inconsistent with testamentary capacity, and, where there is direct evidence the decedent had the necessary ability to understand, even medical opinion is of minor importance:

“It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the [Surrogate] must look to the following factors: (1) whether []he understood the nature and consequences of executing a will; (2) whether []he knew the nature and extent of the property []he was disposing of; and (3) whether []he knew those who would be considered the natural objects of h[is] bounty and h[is] relations with them’ ” … .“ ‘Mere proof that the decedent suffered from old age, physical infirmity and . . . dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will w made’ ”… . “Where there is direct evidence that the decedent possessed the understanding to make a testamentary disposition, even ‘medical opinion evidence assumes a relatively minor importance’ ”….  In the Matter of Alibrandi, 136, CA 12-00963, 4th Dept. 3-15-13

 

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Co-Executor Can Object to Final Accounting Solely By Virtue of the Executor’s Fiduciary Duty to the Estate 

In finding that a co-executor (who could no longer be sued by any of the beneficiaries because all had executed releases) had standing to contest a final accounting submitted by the other co-executor, the Fourth Department wrote:

An executor is a fiduciary who owes “a duty of undivided loyalty to the decedent and ha[s] a duty to preserve the assets that [decedent] entrusted to them” …, and “an executor’s duties are derived from the will itself, not from the letters issued by the Surrogate” … .

“Suffice it to say, an executor who knows that his co[-]executor is committing breaches of trust and not only fails to exert efforts directed towards prevention but accedes to them is legally accountable” … .

…[T]the Surrogate concluded that, because there were no remaining creditors of the estate and all of the other beneficiaries had executed releases absolving objectant of liability, objectant no longer had standing as a co-executor to file any objections to petitioner’s final accounting. * * *

Contrary to the Surrogate’s conclusion, the mere fact that the estate has no creditors and objectant can no longer be sued successfully by any of the beneficiaries does not establish that he has fulfilled his fiduciary duty to the decedent and the estate so as to vitiate his standing to raise objections to the accounting filed by the co-executor.

An executor’s duty is not fulfilled merely because he or she has obtained releases from liability.

The standard of care for a fiduciary cannot be set so low; rather, a fiduciary has a “duty of active vigilance in the collection of assets belonging to the estate” …   In the Matter of Schultz, 51, CA 12-01283, 4th Dept. 3-15-13

 

Punishment Was “Shocking to One’s Sense of Fairness”

In an Article 78 proceeding, the Fourth Department determined the punishment imposed upon an inmate (for an assault on staff) after a Tier III disciplinary hearing, was too severe. The Court determined that “the punishment imposed of four years’ confinement in the Special Housing Unit (SHU) together with four years’ loss of good time and various privileges “ ‘ is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ “ … .  Considering the inmate’s age at the time of the incident (17) and the facts of the incident, the Fourth Department reduced the time in the SHU and the loss of good time and privileges to 18 months.  In the Matter of Cookhorne v Fischer, 162, TP 12-01634, 4th Dept. 3-15-13

 

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Suspended Sentence for Non-Payment of Support Could Not Be Revoked Without Hearing

The Fourth Department ruled that Family Court could not revoke a suspended jail sentence for non-payment of support by the father without giving the father the chance to rebut the allegations against him:

The Support Magistrate previously had issued an order “on consent” in November 2011 (November order), setting forth that the father admitted that he willfully violated the February order and finding him in willful violation of the February order. The Support Magistrate imposed a sentence of four months in jail but suspended the sentence on the condition that the father did not miss two consecutive support payments. *  *  *

Although the court had the discretion to revoke the suspension of the jail sentence, the court erred in doing so without first affording the father “an opportunity to be heard and to present witnesses . . . on the issue whether good cause existed to revoke the suspension of the sentence” (Matter of Thompson v Thompson, 59 AD3d 1104, 1105, quoting Family Ct Act § 433 [a] [internal quotation marks omitted]; see Ontario County Dept. of Social Servs. v Hinckley, 226 AD2d 1126, 1126). “No specific form of a hearing is required, but at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 AD3d at 1105 [internal quotation marks omitted]). “ ‘[I]t is well settled that neither a colloquy between a respondent and Family Court nor between a respondent’s counsel and the court is sufficient to constitute the required hearing’ ” (id.). Here, there was only the admission of nonpayment by the father’s attorney, which was insufficient (see id.), and there was no opportunity for the father to present evidence rebutting the allegations against him.  In the Matter of Davis v Bond, 281, CAF 12-00553, 4th Dept. 3-15-13

 

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Duty to Defend

In finding that an insurance company was required to defend, the Fourth Department explained the relevant criteria in the context of a summary judgment motion:

An insurer’s duty to defend is “ ‘exceedingly broad’ and an insurer will be called upon to provide a defense whenever the allegations of the complaint ‘suggest . . . a reasonable possibility of coverage’ ”.. .“If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” ….Thus, the duty to defend exists “ ‘even though facts outside the four corners of [the] pleadings indicate that the claim may be meritless or not covered’ ” ….

The insured has the initial burden of establishing coverage under an insurance policy while the insurer bears the burden of proving that an exclusion in the policy applies to defeat coverage … .“[E]xclusions are subject to strict construction and must be read narrowly” … .In order to establish that an exclusion defeats coverage, the insurer has the “heavy burden” of establishing that the exclusion is expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable to the facts ….An insurer “will be required to ‘provide a defense unless it can “demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, [in toto], are subject to no other interpretation” ’ ” … .  Georgetown Capital Group, Inc. v Everest National Insurance Company, 82, CA 12-01337, 4th Dept. 3-15-13

 

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Counsel for Nonparty Witness Cannot Participate in Deposition

The Fourth Department determined that counsel for a nonparty witness cannot object, i.e., participate, in a deposition of that witness.  The Court wrote:

…“[C]ounsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses ‘shall proceed as permitted in the trial of actions in open court’ ” (id. [emphasis added]), and it is axiomatic that counsel for a nonparty witness is not permitted to object or otherwise participate in a trial (see e.g. id.).We recognize that 22 NYCRR 221.2 and 221.3 may be viewed as being in conflict with CPLR 3113 (c) inasmuch as sections 221.2 and 221.3 provide that an “attorney” may not interrupt a deposition except in specified circumstances.Nevertheless, it is well established that, in the event of a conflict between a statute and a regulation, the statute controls (seeMatter of Hellner v Board of Educ. of Wilson Cent. School Dist., 78 AD3d 1649, 1651).  Justices Fahey and Martoche dissented in a memorandum. Sciara v Surgical Associates of Western New York, P.C., et al, 1466, CA 12-00809, 4th Dept. 3-15-13

 

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Attorney Conflict Affected Defense Requiring Reversal.

The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest.  The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and criteria for determining whether such a conflict of interest requires reversal.  One of the criteria is that the conflict affect the conduct of the defense, which the Fourth Department found to have occurred in this case.  People vs McGillicuddy, 7 12-00530 Fourth Dept. 2-8-13

 

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Although Victim Was Shot Injuries Did Not Constitute “Serious Physical Injury” Within Meaning of Assault 1st Statute.

Although the victim was shot in the chest and arm, the Fourth Department determined there was insufficient evidence of serious physical injury and reduced the Assault 1st conviction to Attempted Assault 1st.  The Court did not reach the issue whether the indictment was supported by legally sufficient evidence because the issue was not raised in the omnibus motion (suggesting that a conviction does not preclude raising insufficient-evidence-to-indict on appeal).  People vs Madera, 6, KA 11-00450 Fourth Dept. 2-8-13

 

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