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DENIAL OF YOUTHFUL OFFENDER STATUS WAS AN ABUSE OF DISCRETION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny defendant youthful offender status:

The evidence demonstrated that the defendant, who was only 18 years old when he participated in the subject robbery and had spent nearly two years in pretrial detention prior to pleading guilty to robbery in the first degree, played a relatively minor role in the robbery, which, although serious, was orchestrated by his considerably older brother, who was a repeat offender. The defendant suffers from developmental delays. While the defendant did participate in the robbery, it was the defendant’s brother, not the defendant, who wielded a gun and committed a sexual assault against one of the victims. Additional mitigating circumstances include the defendant’s lack of a prior juvenile record, criminal record, or violent history, and his cooperation with the authorities as part of the plea deal. Moreover, the defendant either had graduated from high school or was on the cusp of graduating from high school. Under all the circumstances, the interest of justice would be served by “relieving the defendant from the onus of a criminal record” … . People v Sheldon O., 2019 NY Slip Op 01430, Second Dept 2-27-19

 

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FAMILY COURT SHOULD HAVE ISSUED AN ORDER MAKING FINDINGS TO ALLOW THE CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS, IT WAS NOT IN THE CHILDREN’S BEST INTERESTS TO RETURN TO HONDURAS (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the court should have issued an order making findings to allow the child to petition for Special Immigrant Juvenile Status (SIJS):

… [B]ased upon our independent factual review, the record supports a finding that reunification of the children with their mother is not viable due to parental abandonment … . The children testified that the mother left when they were both only three years old, and that they have not seen or spoken to the mother since that time. Thus, the record establishes that the mother has had no involvement with the children for the majority of their lives … .

Further, the record supports a finding that it would not be in the best interests of the children to return to Honduras, their previous country of nationality or country of last habitual residence … . Francis testified that when the children lived with their paternal aunt in Honduras, they were “mistreat[ed] . . . emotionally and physically.” The children testified that when they then went to live with their father and stepmother in Honduras, the stepmother beat them and “wouldn’t give us food” when the father was not around, and that the stepmother was “verbally abusive,” telling the children, among other things, that they were “good for nothing.” The record reflects that the children had no one else to take care of them if they returned to Honduras. Consequently, the record demonstrates that it would not be in the best interests of the children to return to Honduras … . Matter of Norma U. v Herman T. R.F., 2019 NY Slip Op 01421, Second Dept 2-27-19

 

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FAMILY COURT DID NOT HAVE AUTHORITY TO SUA SPONTE VACATE A CONSENT ORDER IN THIS SUPPORT PROCEEDING, VACATION OF THE CONSENT ORDER AND THE RESULTING COMMITMENT ORDER REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the court did have the authority to issue a sua sponte order vacating a consent order:

Upon the father’s admission to a willful violation of the support order and upon the father’s representation that he was employed, an order of disposition was entered upon the parties’ consent, finding the father to be in willful violation of the support order and committing him to a term of incarceration of five months, but suspending his commitment on the condition that he complied with the support order (hereinafter the consent order). Shortly after the consent order was entered, the Family Court received a telephone call, ostensibly from the father’s purported employer, informing the court that the father was not, in fact, employed. The court, over the father’s objection, sua sponte issued an order vacating the consent order (hereinafter the sua sponte order). The court then proceeded to a willfulness hearing, at the conclusion of which it issued the second order of disposition, finding the father to be in willful violation of the support order and directing that he be committed to the Orange County Jail for a period of six months unless he paid the purge amount of $19,839 (hereinafter the commitment order). …

As the father correctly contends, the Family Court lacked authority to issue the sua sponte order vacating the consent order (see CPLR 5019[a]) …). Moreover, the court issued the sua sponte order on the basis of unsworn statements made during a telephone call between the court and the father’s purported employer … . Accordingly, the sua sponte order must be reversed, and the commitment order, which was based in part on the sua sponte order, must be reversed as well. Matter of Schiavone v Mannese, 2019 NY Slip Op 01419, Second Dept 2-27-19

 

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ORDER MAKING THE FINDINGS NECESSARY FOR THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED, CHILD ESCAPED EL SALVADOR BECAUSE OF GANG VIOLENCE AND THREATS (SECOND DEPT).

The Second Department, reversing Family Court, determined the father’s motion for an order making the findings necessary for the child to petition for Special Immigrant Juvenile Status (SIJS) should have been granted:

Based upon our independent factual review, we find that the record establishes that the child met the age and marital status requirements for special immigrant status … , and the dependency requirement has been satisfied by the granting of the father’s guardianship petition prior to the child’s 21st birthday … . Further, we find that reunification of the child with her mother is not a viable option due to parental abandonment … . The record reflects that after the child came to the United States in February 2014, she did not live with the mother because the “mother did not want to support her,” and that the child lived in close proximity to the mother, but the mother only visited the child once, in March 2014, and did not visit or even contact the child from that time through the time the father made the subject motion in April 2018. We also find that the record supports a finding that it would not be in the best interests of the child to return to El Salvador, her previous country of nationality or country of last habitual residence. The record reflects that the child was threatened by gang members in El Salvador while walking home from school, that the gang members “wanted to recruit [the child] and have her sell drugs” and told her that “she had to join them or they would murder her and her family,” that the gang members started texting her to “extort money from her,” that the child was sent to live with a family friend, but the threats continued, and that the child left El Salvador to escape from the gangs … . Matter of Rina M. G.C. (Oscar L.G.–Ana M. C.H.), 2019 NY Slip Op 01407, Second Dept 2-27-19

 

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ALTHOUGH THE MOTION TO SET ASIDE THE DEFAULT JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED, A FULL EVIDENTIARY HEARING WAS REQUIRED TO DETERMINE THE APPROPRIATE DAMAGES AMOUNT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the motion to vacate the default in this dog-bite case should not have been granted because it was untimely and unsubstantiated, but a full evidentiary hearing was required to determine the appropriate amount of damages:

… [A] court has the “inherent power to set aside excessive awards made upon default,” despite the fact that there is no reasonable excuse for the default … . “An unwarranted and excessive award after inquest will not be sustained, as to do otherwise would be tantamount to granting the plaintiffs an “open season” at the expense of a defaulting defendant'”… . In light of the evidence in the record, including the plaintiff’s testimony at the inquest, which was not supported by any expert testimony, and a police report of the incident which stated that the plaintiff suffered “minor injuries from an animal bite,” there are significant questions as to whether the award of the principal sum of $500,000, consisting of $200,000 for past pain and suffering and $300,000 for future pain and suffering, was excessive. Thus, we agree with the Supreme Court’s determination to stay enforcement of the default judgment and the settlement agreements based upon that judgment, and to direct further discovery. However, the court also should have stated in its order dated September 21, 2016, that the issues to be determined on the motion to stay enforcement of the default judgment are limited to the issue of damages. Loeffler v Glasgow, 2019 NY Slip Op 01401, Second Dept 2-27-19

 

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COLLEGE DID NOT OWE A DUTY OF CARE TO TWO STUDENTS WHO DIED IN A FIRE IN THE OFF-CAMPUS HOUSE THEY WERE RENTING (SECOND DEPT).

The Second Department determined the college (Marist College) did not owe a duty of care to two students (Kerry and Eva) who died in a fire in an off-campus house (Brennan house). The house was on a private-off-campus-housing list made available to students by the college:

“The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?” … . In the context of this action, a critical consideration in determining whether such a duty exists is whether Marist College’s relationship with either the Brennans or Kerry and Eva placed the college in the best position to protect against the risk of harm … . Also relevant is the principle that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully” … . …

… .Marist College did not owe a duty of care to Kerry and Eva. Contrary to the plaintiffs’ argument, Marist College demonstrated … that it did not owe a duty to ensure that the off-campus housing listed on its website, which included the Brennan house, complied with all relevant fire safety standards. Even if, in theory, Marist College could have refused to list landlords on its website unless each landlord’s off-campus housing met all relevant fire safety laws and regulations, imposing such a requirement on the college is simply not warranted because the college is not “in the best position to protect against the risk of harm”… . In this regard, it bears recalling that the doctrine of in loco parentis has no application at the college level … . Adult students who chose to live off campus, as well as the private landlords with whom they enter into a contractual relationship, are in the best position to ensure that off-campus apartments and houses have the required number of smoke detectors and other fire safety features. While the risk of fire is all too foreseeable—often with tragic consequences, as this case demonstrates—”[f]oreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist” … .

… .Marist College also demonstrated … that it did not assume a duty to ensure that the Brennan house was safe for Kerry and Eva to live in, as the college did not engage in any conduct that may have induced Kerry and Eva to forgo some opportunity to avoid risk, thereby placing them “in a more vulnerable position than [they] would have been in had [Marist College] done nothing” … . In fact, the evidence shows, among other things, that Kerry and Eva found the Brennan house because they knew some of the students who had been renting it. Fitzsimons v Brennan, 2019 NY Slip Op 01200,  Second Dept 2-20-19

 

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE FRAUD AND BREACH OF FIDUCIARY DUTY CAUSES OF ACTION, DEFENDANT PURCHASED THE PROPERTY FOR HERSELF WHILE ACTING AS PLAINTIFF’S REAL ESTATE BROKER (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment on the fraud and breach of fiduciary duty causes of action against defendant (Maureen), a real estate broker. The complaint alleged that Maureen purchased the property herself while acting as plaintiff’s broker:

“[A] real estate broker is a fiduciary with a duty of loyalty and an obligation to act in the best interests of the principal”… . “[I]n dealing with the principal, a real estate broker must act honestly and candidly, and the broker must disclose all material information that it may possess or obtain concerning the transactions involved”… . Moreover, “[w]here a broker’s interests or loyalties are divided due to a personal stake in the transaction or representation of multiple parties, the broker must disclose to the principal the nature and extent of the broker’s interest in the transaction or the material facts illuminating the broker’s divided loyalties” … . “A breach of this duty of loyalty by a real estate broker may constitute a fraud for which the broker is answerable in damages” … . Edwards v Walsh, 2019 NY Slip Op 01197, Second Dept 2-20-19

 

QUESTION OF FACT WHETHER STOCKING SHELVES WAS PART OF A LARGER RENOVATION PROJECT AND THEREFORE A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment in this Labor Law 240 (1) action should have been denied. Plaintiff was stocking shelves when he fell 20 feet. There was a question of fact whether stocking shelves was part of the larger renovation project and therefore covered under Labor Law 240 (1):

… [T]he warehouse defendants’ submissions failed to demonstrate, as a matter of law, that the plaintiff’s activity in stocking shelves was not performed as part of the larger renovation project that he had been hired to complete on the premises, including assembly of the shelving structures and other tasks attendant to preparing the warehouse to receive … stock merchandise … . Bonilla-Reyes v Ribellino, 2019 NY Slip Op 01193, Second Dept 2-20-19

 

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BANK ENTITLED TO JUDGMENT UNDER THE DOCTRINE OF EQUITABLE SUBROGATION (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment pursuant to the equitable subrogation theory in this foreclosure action:

… [T]he plaintiff commenced this action to foreclose a mortgage in the principal amount of $480,000, which it alleged was secured by real property in Brooklyn, owned by the defendants Tzilia Dalfin (hereinafter Tzilia) and Angel E. Daflin (hereinafter Angel), who have been divorced since the 1990s. It is undisputed that $453,900.03 of the proceeds of the mortgage were used to pay off Tzilia and Angel’s prior mortgage on the property as well as outstanding taxes. * ** *

Under the doctrine of equitable subrogation, “[w]here property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” … . Even if, as Angel contends, his signature on the subject mortgage was forged, the plaintiff could still recover against him on the theory of equitable subrogation based upon its payoff of the prior mortgage and liens against his property at the closing of the subject mortgage … .

… [T]he plaintiff established its … entitlement to judgment as a matter of law on a theory of equitable subrogation by submitting evidence that $453,900.03 of the proceeds of the subject mortgage were used to pay off the prior mortgage and taxes for which Angel was liable … . Wells Fargo Bank, N.A. v Dalfin, 2019 NY Slip Op 01255, Second Dept 2-20-19

 

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EMAIL CALLING INTO QUESTION THE LEGITIMACY OF PLAINTIFF’S PHD PROTECTED BY QUALIFIED PRIVILEGE (SECOND DEPT).

The Second Department determined the defendant’s CPLR 4401 motion to dismiss the complaint after trial in this defamation action was properly granted. The statements were deemed to be protected by qualified privilege:

The parties are members of the faculty of the School of Business at Medgar Evers College (hereinafter MEC), a college of the City University of New York (hereinafter CUNY). The plaintiff commenced this action alleging that each of the defendants sent an email defaming her to other faculty and staff within the School of Business. The content of the emails related to the quality or legitimacy of the plaintiff’s doctoral degree, and included statements that she did not have a recognized Ph.D., that her degree was not genuine, and that it was purchased from a diploma mill.  * * *

A qualified privilege extends to a communication made by one person to another upon a subject in which both have an interest … . The privilege does not apply where the plaintiff can demonstrate that the communication was not made in good faith, but was motivated solely by malice, meaning, in this context, “spite or a knowing or reckless disregard of a statement’s falsity” … . However, “[m]ere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege” … .

Here, based on the plaintiff’s evidence, the challenged statements concerned a matter in which the defendants and the recipients of the defendants’ emails had a common interest, namely, the academic reputation and integrity of the School of Business and its faculty … . Contrary to the plaintiff’s contention, accepting her evidence as true and affording her every favorable inference which may be properly drawn from it … , that evidence does not support a reasonable conclusion that the challenged statements were motivated solely by malice. Udeogalanya v Kiho, 2019 NY Slip Op 01251, Second Dept 2-20-19

 

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