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RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, over a dissent, reversed defendant's convictions for reckless endangerment and reckless assault. Defendant had picked up a gun that his friend (Morales) had brought to his house. In handling the gun it went off injuring his friend's leg. His friend was asleep when the gun fired. Defendant immediately said he was sorry, put the gun in a garbage can and accompanied his friend to the hospital. The Second Department determined the convictions were against the weight of the evidence because there was insufficient proof that defendant acted recklessly:

… [T]he People failed to prove beyond a reasonable doubt that the defendant was aware of and consciously disregarded a substantial risk that his conduct would cause physical injury to another person. The People did not introduce evidence that the defendant was familiar with weapons, or the particular gun. Indeed, the gun was brought to the defendant's home by Morales, and it is undisputed that the gun discharged as the defendant handled it out of curiosity. There was no evidence from which it could be inferred that the defendant knew the gun was loaded with live ammunition, or even knew how the particular gun operated. There was no evidence introduced that the defendant was aware of and consciously disregarded the risk that the gun might misfire … . Indeed, Morales testified that the defendant appeared “scared” when the gun discharged and that the defendant immediately stated that he was “sorry.” The defendant attempted to dispose of the gun and helped the victim get medical care. Contrary to the People's contention, there was no testimony that the defendant was pointing the gun at Morales when it discharged, and there was no evidence introduced establishing that the only way the pellets could have struck Morales's leg was by pointing the gun directly at Morales. People v Marin, 2018 NY Slip Op 05942, Second Dept 8-29-18

CRIMINAL LAW (RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/APPEALS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/RECKLESSNESS (CRIMINAL LAW, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, RECKLESS ENDANGERMENT AND RECKLESS ASSAULT CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT))

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POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant's motion to suppress a handgun and statements should not have been granted in this street stop case. The Second Department found that the officer who stopped the defendant properly responded to an escalating situation which culminated in the defendant's flight and abandonment of a backpack containing the handgun:

There is no dispute that upon receiving a radio transmission of an anonymous tip that a man of a specific description wearing a black backpack and possessing a gun was traveling on the B6 bus toward Canarsie, the responding police officer had a common-law right of inquiry upon encountering the defendant exiting that bus and matching the description … . The responding officer testified at the suppression hearing that he approached the defendant and asked something to the effect of, “Hey, what's up, man, you know, you got a second for the police?” The defendant's eyes widened, he appeared visibly nervous, and he started to back up. The defendant then thrust his right hand in his right pants pocket and refused to comply with the officer's command to remove it. These actions by the defendant escalated the encounter to justify the officer drawing his weapon, placing it across his own chest in a “depressed position,” and attempting to forcibly remove the defendant's hand from his pocket as a self-protective measure … . Further, the defendant's subsequent flight, coupled with all of the other indicia of criminality, justified the police pursuit …  and, ultimately, the recovery of a semi-automatic handgun from the defendant's backpack, which he abandoned in a nearby bodega … . People v King, 2018 NY Slip Op 05941, Second Dept 8-29-18

CRIMINAL LAW (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STREET STOPS (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPPRESS, MOTION TO (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEARCH AND SEIZURE  (POLICE OFFICER RESPONDED APPROPRIATELY TO AN ESCALATING SITUATION AFTER A STREET STOP, MOTION TO SUPPRESS ABANDONED HANDGUN AND STATEMENTS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT).

The Second Department determined the defamation action, based upon a complaint made to the Society for the Prevention of Cruelty to Animals (SPCA) was properly dismissed. The complaint did not include the allegedly defamatory statement (a pleading failure) and the statement enjoyed qualified privilege. A remark posted on the Internet, which stated that defendant (Studer) had “seen and heard” horror stories about plaintiffs' treatment of animals, was nonactionable opinion:

… [W]ith respect to the plaintiffs' contention that Studer was liable for defamation based on the statements she made to the SPCA, since the amended complaint failed to set forth “the particular words complained of,” that branch of Studer's motion which was for summary judgment dismissing so much of the defamation cause of action as was based on those statements should have been granted (CPLR 3016[a]…). In any event, the record supports the Supreme Court's determination that Studer demonstrated, prima facie, that the allegedly defamatory statements enjoyed a qualified privilege. Protection from defamation is afforded where the person making the statements does so fairly “in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned” …  Here, since the evidence establishes that Studer made the statements to the SPCA in a good faith effort to obtain the aid of a law enforcement agency in addressing a potentially unsafe environment which children in her community frequented, the statements are subject to a qualified privilege … . …

We also agree with the Supreme Court's determination to reject the plaintiffs' contention that Studer was liable for defamation based on the Internet post. Studer established, prima facie, that this post constituted a nonactionable expression of opinion inasmuch as it consisted of imprecise, subjective characterizations which could not be objectively verified … . New York Horse Rescue Corp. v Suffolk County Socy. for the Prevention of Cruelty to Animals, 2018 NY Slip Op 05934, Second Dept 8-29-18

DEFAMATION (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/CIVIL PROCEDURE (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/CPLR 3016 (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/PRIVILEGE (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))

POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT).

The Second Department, reversing Supreme Court , determined petitioner's designating petition for the nomination of the Republican Party as a candidate for the Assembly should not have been invalidated on the ground that there were two voters registered at petitioner's address with similar names (father and son). Father and son are named Michael Yacubich and petitioner sought to be placed on the ballot as Mike Yacubich:

The Board exceeded its authority when it invalidated the designating petition on the ground that it could not identify which registered voter was the candidate. As amplified by the testimony of one of the Commissioners, the Board perceived that the similarity between the two names was confusing. “[B]oards of election have no power to deal with questions of fact or with objections involving matters not appearing upon the face of the petition, and . . . such extrinsic matters, if any, are to be determined in court proceedings only” … . “[T]he board's power to determine the validity of a [designating or] nominating petition extends only to ministerial examination and the board may not go behind a petition designating candidates for primary election” … . Candidates are permitted to run for office using a familiar name or nickname … . Similar to objections raising allegations of fraud  … , the issue of whether a candidate's name is confusing because it is similar to another voter's name involves a matter extrinsic to the designating petition itself and, thus, is a matter for judicial consideration and not for the Board of Elections. Accordingly, the Board lacked the authority to rule on the objection based upon its perception that the petition was confusing because of the candidate's name, which should have been raised through a judicial proceeding to invalidate. Matter of Yacubich v Suffolk County Bd. of Elections, 2018 NY Slip Op 05912, Second Dept 8-24-18

ELECTION LAW (POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT))

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AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT).

The Second Department, in an action for false arrest and related causes of action, all of which were dismissed, noted that an action for intentional infliction of emotional distress cannot, as a matter of public policy, be brought against a municipality:

… [W]e agree with the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action to recover damages for intentional infliction of emotional distress with respect to the City, as “public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity”… . Moreover, the defendants established their prima facie entitlement to judgment as a matter of law dismissing that cause of action insofar as asserted against [the arresting officer] by establishing that [the officer]i did not engage in extreme or outrageous conduct … . Ball v Miller, 2018 NY Slip Op 05813, Second Dept 8-22-18

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (MUNICIPAL LAW, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))/MUNICIPAL LAW (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AS A MATTER OF PUBLIC POLICY, AN ACTION ALLEGING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CANNOT BE BROUGHT AGAINST A MUNICIPALITY (SECOND DEPT))

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CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS’ SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined plaintiff bicyclist's suit against the city stemming from injury after running over a pothole should have been dismissed. The defendants established the city did not have prior written notice of the condition:

… [T]he defendants established the City's prima facie entitlement to judgment as a matter of law by demonstrating through, inter alia, DOT records, that the City did not have prior written notice of the condition alleged as required by the Administrative Code … and that the City did not affirmatively create the condition … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City received prior written notice of the alleged condition. Although the plaintiff relied upon a map submitted by the Big Apple Pothole and Sidewalk Protection Corporation which had a straight line, indicating “[r]aised or uneven portion of sidewalk,” in the area where the plaintiff's accident occurred, the map did not give the City prior written notice of the pothole condition alleged by the plaintiff … . The plaintiff also failed to raise a triable issue of fact as to whether the City created the alleged condition through an affirmative act of negligence. Allen v City of New York, 2018 NY Slip Op 05811, Second Dept 8-22-18

NEGLIGENCE (MUNICIPAL LAW, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/BICYCLISTS (NEGLIGENCE, MUNICIPAL LAW, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/POTHOLES (NEGLIGENCE, MUNICIPAL LAW, CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS' SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PROSECUTOR’S REPEATED USE OF THE TERM ‘STATUTORY RAPE’ TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING ON THE JUSTIFICATION DEFENSE (SECOND DEPT).

The Second Department, reversing defendant's manslaughter conviction, determined the prosecutor's repeated use of the term “statutory rape” to describe the charge against the victim deprived the defendant of a fair trial. The defendant raised the justification defense. Defendant had been working with the police to capture the victim, who had confessed to the defendant he was wanted for rape. Defendant shot the victim when he was attempting to turn the victim over to the police. By using the term “statutory rape,” the jury was given the mistaken impression that the rape was not a violent offense:

The County Court correctly determined that the use of the term “statutory rape” when describing the victim's alleged criminal conduct was not proper as such a colloquial term may have been misinterpreted by some jurors to mean that the sexual contact between the victim and his alleged victim was consensual, but illegal solely because of the age difference between them. Indeed, the People had initially contended to the County Court that the crime for which the victim was charged, rape in the second degree… , was not a “violent” crime. Here, because the defendant's defense was based on justification, the County Court was properly concerned that use of the term “statutory rape” by the prosecutor may have been interpreted by jurors to imply that the victim was not violent, and thus properly instructed the potential jurors that the victim was a fugitive charged with rape in the second degree. However, the court's failure to issue curative instructions to the entire jury pool, including those already sworn and seated, was error and deprived the defendant of his fundamental right to a fair trial … . People v Carlson, 2018 NY Slip Op 05859, Second Dept 8-22-18

CRIMINAL LAW (PROSECUTOR'S REPEATED USE OF THE TERM 'STATUTORY RAPE' TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING THE JUSTIFICATION DEFENSE (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR'S REPEATED USE OF THE TERM 'STATUTORY RAPE' TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING THE JUSTIFICATION DEFENSE (SECOND DEPT))/PROSECUTORIAL MISCONDUCT  (PROSECUTOR'S REPEATED USE OF THE TERM 'STATUTORY RAPE' TO GIVE THE JURY THE MISIMPRESSION THE VICTIM OF THE SHOOTING IN THIS MANSLAUGHTER CASE HAD NOT BEEN CHARGED WITH A VIOLENT RAPE DEPRIVED DEFENDANT OF A FAIR TRIAL BECAUSE DEFENDANT WAS RELYING THE JUSTIFICATION DEFENSE (SECOND DEPT))

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ANONYMOUS PHONE CALL DESCRIBING ‘A MAN WITH A GUN’ AND DESCRIBING THE MAN’S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant's criminal possession of a weapon convictions, determined that defendant's motion to suppress the weapon, identification and statements should have been granted. The police stopped the defendant's car and approached with guns drawn on the basis of an anonymous phone call which described “a man with a gun” and described the car the man was driving, including the license plate number. The Second Department determined the anonymous call did not provide the officers with reasonable suspicion sufficient to justify stopping and frisking a suspect:

“It is fundamental that in order to stop a vehicle the police must have a reasonable suspicion, based on objective evidence, that the occupants were involved in a felony or misdemeanor” … . “Reasonable suspicion has been defined as that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand'”… .. “[W]here an anonymous phone tip giving a general description and location of a man with a gun' is the sole predicate, it will generate only a belief that criminal activity is afoot,” and “will not of itself constitute reasonable suspicion thereby warranting a stop and frisk of anyone who happens to fit that description”… . “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her [or his] allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity'” … . However, “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop'” … . Further, reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” … .

Here, while the individual who reported a man with a gun ultimately disclosed his identity to Officer Travitt, his identity was unknown at the time the police stopped the vehicle and ordered the defendant out of the car at gunpoint … . The police lacked reasonable suspicion to stop the vehicle based only on an anonymous tip of “a man with a gun,” since the tip came from an individual ” who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant],'” and the report ” [did] not show that the tipster ha[d] knowledge of concealed criminal activity'” … . People v Bailey, 2018 NY Slip Op 05856, Second Dept 8-22-18

CRIMINAL LAW (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/STREET STOPS (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (SUPPRESSION, ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/SUPPRESS, MOTION TO  (ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))/REASONABLE SUSPICION (CRIMINAL LAW, ANONYMOUS PHONE CALL DESCRIBING 'A MAN WITH A GUN' AND DESCRIBING THE MAN'S CAR, INCLUDING THE LICENSE PLATE NUMBER, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION SUFFICIENT TO JUSTIFY STOPPING THE CAR, APPROACHING WITH GUNS DRAWN, AND FRISKING THE DEFENDANT, MOTION TO SUPPRESS SHOULD HAVE GRANTED, CRIMINAL POSSESSION OF A WEAPON CONVICTIONS REVERSED (SECOND DEPT))

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REAL ESTATE CONTRACT LIMITING REMEDIES CONSTITUTED DOCUMENTARY EVIDENCE SUFFICIENT TO WARRANT DISMISSAL OF CAUSES OF ACTION FOR SPECIFIC PERFORMANCE AND REFORMATION OF THE PURCHASE CONTRACT, PLEADING REQUIREMENTS FOR FRAUDULENT MISREPRESENTATION EXPLAINED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant's motion to dismiss causes of action for specific performance and reformation of a real estate purchase contract should have been granted. However the motion to dismiss the fraudulent misrepresentation cause of action was properly denied. The Second Department determined the limitation of remedies in the real estate contract constituted documentary evidence justifying dismissal pursuant to CPLR 3211(a)(1). The requirements for sufficiently pleading a cause of action for fraudulent misrepresentation were explained as well:

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law” … . “An unambiguous contract provision may qualify as documentary evidence under CPLR 3211(a)(1)” … . Here, the parties' contract, which limited the plaintiff's remedies in the event that the defendants were unable to clear defects in title, established a complete defense as a matter of law to the first and third causes of action, seeking specific performance and reformation of the contract based upon mutual mistake, respectively … . …

Where a cause of action is based on a misrepresentation or fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). Here, the complaint sufficiently stated a cause of action to recover damages for fraudulent misrepresentation by alleging that the defendants misrepresented that they owned 42-55 27th Street and had the right to convey it, that they made this representation despite knowing that it was false, and that the plaintiff reasonably relied upon the representation to his detriment. Hiu Ian Cheng v Salguero, 2018 NY Slip Op 05831, Second Dept 8-22-18

CIVIL PROCEDURE (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, REAL ESTATE CONTRACT LIMITING REMEDIES CONSTITUTED DOCUMENTARY EVIDENCE SUFFICIENT TO WARRANT DISMISSAL OF CAUSES OF ACTION FOR SPECIFIC PERFORMANCE AND REFORMATION OF A REAL ESTATE PURCHASE CONTRACT, PLEADING REQUIREMENTS FOR FRAUDULENT MISREPRESENTATION EXPLAINED (SECOND DEPT))/CPLR 3211 (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, REAL ESTATE CONTRACT LIMITING REMEDIES CONSTITUTED DOCUMENTARY EVIDENCE SUFFICIENT TO WARRANT DISMISSAL OF CAUSES OF ACTION FOR SPECIFIC PERFORMANCE AND REFORMATION OF A REAL ESTATE PURCHASE CONTRACT, PLEADING REQUIREMENTS FOR FRAUDULENT MISREPRESENTATION EXPLAINED (SECOND DEPT))/CONTRACT LAW (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, REAL ESTATE CONTRACT LIMITING REMEDIES CONSTITUTED DOCUMENTARY EVIDENCE SUFFICIENT TO WARRANT DISMISSAL OF CAUSES OF ACTION FOR SPECIFIC PERFORMANCE AND REFORMATION OF A REAL ESTATE PURCHASE CONTRACT, PLEADING REQUIREMENTS FOR FRAUDULENT MISREPRESENTATION EXPLAINED (SECOND DEPT))/REAL ESTATE (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, REAL ESTATE CONTRACT LIMITING REMEDIES CONSTITUTED DOCUMENTARY EVIDENCE SUFFICIENT TO WARRANT DISMISSAL OF CAUSES OF ACTION FOR SPECIFIC PERFORMANCE AND REFORMATION OF A REAL ESTATE PURCHASE CONTRACT, PLEADING REQUIREMENTS FOR FRAUDULENT MISREPRESENTATION EXPLAINED (SECOND DEPT))/FRAUD (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, REAL ESTATE CONTRACT LIMITING REMEDIES CONSTITUTED DOCUMENTARY EVIDENCE SUFFICIENT TO WARRANT DISMISSAL OF CAUSES OF ACTION FOR SPECIFIC PERFORMANCE AND REFORMATION OF A REAL ESTATE PURCHASE CONTRACT, PLEADING REQUIREMENTS FOR FRAUDULENT MISREPRESENTATION EXPLAINED (SECOND DEPT))

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DEFENDANT WHICH BUILT THE SWIMMING POOL, DEFENDANT WHICH INSTALLED THE POOL LINER, AND DEFENDANT OWNERS OF THE POOL, WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SWIMMING POOL INJURY CASE, PLAINTIFF WAS INJURED WHEN HE DOVE IN AND STRUCK HIS CHIN IN A SHALLOW AREA (SECOND DEPT).

The Second Department determined defendants' motions for summary judgment in this swimming pool injury case was properly denied. Plaintiff was injured when he dove into the pool allegedly unaware of a shallow area near the deep area. The builder of the pool and the installer of the pool liner (the Bertolino defendants), as well as the owners of the pool (the Olsen defendants), were sued.  The Bertolino defendants could be liable based upon their contracts with the owners because it was alleged the pool was negligently designed and constructed by them. There also was a question of fact whether the condition was readily observable (raising the duty to protect or warn on the part of the owners):

With respect to the Bertolino defendants, generally, a contractual obligation of a third party does not give rise to liability in tort to persons not a party to the contract… . An exception exists, however, where the contractor created a dangerous condition or increased the risk of harm to others in its undertaking … . Here, the plaintiff's allegation that the Bertolino defendants negligently designed and constructed the subject pool by incorporating the allegedly dangerous condition falls within this exception … . Moreover, the Bertolino defendants failed to establish, prima facie, that the alleged condition was not dangerous or that it did not unreasonably increase the risk of harm to those diving off the side of the pool, even though, as their expert opined, it was located outside the “diving water envelope,” which the expert described as the “area without constructed intrusions” … . …

As to the Olsen defendants, “[t]he owner of a private residential swimming pool has a duty to maintain the pool in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk” … . “What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” … . However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one's senses … . Here, the Olsen defendants, who did not deny notice of the allegedly dangerous condition, failed to establish, prima facie, that the condition at issue was not inherently dangerous and that it was readily observable by the reasonable use of one's senses … . Grosse v Olsen, 2018 NY Slip Op 05829. second Dept 8-22-18

NEGLIGENCE (SWIMMING POOL, DEFENDANT WHICH BUILT THE SWIMMING POOL, DEFENDANT WHICH INSTALLED THE POOL LINER, AND DEFENDANT OWNERS OF THE POOL, WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SWIMMING POOL INJURY CASE, PLAINTIFF WAS INJURED WHEN HE DOVE IN AND STRUCK HIS CHIN IN A SHALLOW AREA (SECOND DEPT))CONTRACT LAW (TORT LIABILITY TO NON-PARTY, SWIMMING POOL, DEFENDANT WHICH BUILT THE SWIMMING POOL, DEFENDANT WHICH INSTALLED THE POOL LINER, AND DEFENDANT OWNERS OF THE POOL, WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SWIMMING POOL INJURY CASE, PLAINTIFF WAS INJURED WHEN HE DOVE IN AND STRUCK HIS CHIN IN A SHALLOW AREA (SECOND DEPT))/SWIMMING POOLS (NEGLIGENCE, CONTRACT LAW, DEFENDANT WHICH BUILT THE SWIMMING POOL, DEFENDANT WHICH INSTALLED THE POOL LINER, AND DEFENDANT OWNERS OF THE POOL, WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SWIMMING POOL INJURY CASE, PLAINTIFF WAS INJURED WHEN HE DOVE IN AND STRUCK HIS CHIN IN A SHALLOW AREA (SECOND DEPT))

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