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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

 

DEFENDANT DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE STAIRWAY WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL, HOWEVER DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT).

The Second Department determined the defendant did not demonstrate the absence of constructive notice of the condition of the stairway where plaintiff allegedly slipped and fell. Therefore defendant’s motion for summary judgment should not have granted on that ground. However, although Supreme Court didn’t rule on the issue, the Second Department held that defendant’s motion for summary judgment should have been granted because plaintiff could not identify the cause of the fall:

… [T]he defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. While the deposition testimony of the premises’ caretaker demonstrated that the caretaker inspected and cleaned the subject stairwell on a regular basis, the defendant failed to present evidence regarding specific cleaning or inspection of the area in question relative to the time when the subject accident occurred … . Thus, the defendant was not entitled to summary judgment dismissing the complaint on the ground that it established that it did not have notice of the alleged hazardous condition.

A defendant in a slip-and-fall case may also establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting the plaintiff’s General Municipal Law § 50-h hearing and deposition transcripts, which demonstrated that he was unable to identify the cause of his fall without resorting to speculation … . In opposition, the plaintiff failed to raise a triable issue of fact in this regard … . Rodriguez v New York City Hous. Auth., 2019 NY Slip Op 01246, Second Dept 2-20-19

 

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IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT).

The Second Department determined the testimony of the People’s DNA expert violated defendant’s right to confrontation. The error was deemed harmless however:

… [T]he Supreme Court should not have admitted, over the defendant’s objection, the testimony of the People’s DNA expert, as such testimony violated the defendant’s right to confrontation… . In order to satisfy the Confrontation Clause where the People seek to introduce testimonial DNA evidence, “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, must be available to testify”… . Although the People’s expert testified that he conducted a “technical review” of the reports prepared by another criminalist whom he supervises, he did not establish that such review entailed using his own independent analysis on the raw data … .

Even so, the error in admitting the testimonial DNA evidence was harmless since the proof of the defendant’s guilt, without reference to the erroneously admitted DNA evidence, was overwhelming and there was no reasonable possibility that the Supreme Court would have acquitted the defendant had it not been for the error … . People v Dyson, 2019 NY Slip Op 01225, Second Dept 2-20-19

CRAWFORD, CROSS-EXAMINATION

 

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