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FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court did not have the authority to order mother to be fingerprinted in this special immigrant juvenile status (SIJS) proceeding:

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… [T]he mother commenced this proceeding to be appointed guardian of the subject child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the mother moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. The Family Court denied the motion without a hearing and dismissed the guardianship petition for “failure to prosecute” based on the mother’s failure to obtain fingerprinting. The mother appeals.

Since there is no express statutory fingerprinting requirement in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant” … , the Family Court erred in denying the mother’s motion based on her failure to comply with the court’s directive to obtain fingerprinting … . Further, under the circumstances of this case, the court erred in dismissing the petition for “failure to prosecute” based on the mother’s failure to obtain fingerprinting … . Matter of Fermina B. v Rene P., 2017 NY Slip Op 09125, Second Dept 12-27-17

 

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATE (SIJS) (FAMILY LAW,  FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))/FINGERPRINTING (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))/IMMIGRATION  (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FINGERPRINTING, FAMILY COURT DID NOT HAVE THE AUTHORITY TO ORDER THE FINGERPRINTING OF MOTHER SEEKING TO BE APPOINTED GUARDIAN IN THIS SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDING (SECOND DEPT))

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DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Eng, determined Supreme Court properly denied defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk assessment proceeding. Defendant submitted two psychological risk assessments, the Static-99R and the Vermont Assessment, in support of the request for downward departure:

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To recognize a low or moderate-low score on the Static-99R and/or the Vermont Assessment as a mitigating factor would, in essence, permit SORA courts to rely on those instruments in lieu of the RAI [New York’s Risk Assessment Instrument} promulgated by the Board [of examiners of sex offenders] and designed to account for the specific factors prescribed by the Legislature. This would amount to a rejection of the RAI in favor of assessment instruments that serve the more limited function of attempting to measure risk of reoffense alone, in clear contravention of the legislative intent to require consideration of both risk of reoffense and the danger of harm posed by reoffense … . …

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Even were we to accept the proposition that the fact that a sex offender received a more favorable assessment on the Static-99R or Vermont Assessment could constitute an appropriate mitigating factor, we would find that the defendant failed to sustain his burden of proof in support of his request for a downward departure on this basis. …

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Our conclusion that an offender’s lower risk score on an alternate risk assessment instrument is not itself a mitigating factor that can support a downward departure does not necessarily mean that an offender cannot rely upon one or more of the individual risk factors included on such instruments to demonstrate that he or she is at a lower risk of reoffense or poses less of a danger to the community. While some of the risk factors included on the Static-99R and Vermont Assessment are also taken into account by the RAI, other risk factors are unique to those instruments. Here, however, the defendant has not identified any specific, unique risk factors on the Static-99R or Vermont Assessment that could qualify as a mitigating factor. People v Curry, 2017 NY Slip Op 09184, Second Dept 12-27-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/MITIGATING FACTORS  (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/

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THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s assault conviction, determined the jury should not have been instructed that the paramedic defendant was accused of assaulting was a peace officer (thereby negating the justification defense). The paramedic (Cohn) was a member of the NYC Fire Department, and was not authorized to arrest:

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Penal Law § 35.27 provides that “[a] person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.” CPL 2.10 sets forth the “[p]ersons designated as peace officers,” including, as relevant here, “[a]ll officers and members of the uniformed force of the New York city fire department as set forth and subject to the limitations contained in section 487a-15.0 of the administrative code of the city of New York” (CPL 2.10[28]). The relevant section of the New York City Administrative Code provides, with limited exceptions not applicable here, that “[i]n the performance of their duties, all officers and members of the uniformed force [of the FDNY] . . . shall have the powers and perform the duties of peace officers, but their power to make arrests and to serve process in criminal actions shall be restricted to cases arising under laws relating to fires and the extinguishment thereof, and to fire perils” … .

… EMS personnel are not members of the uniformed force of the FDNY … . Accordingly, Paramedic Cohn was not acting as a peace officer within the meaning of CPL 2.10(28) at the time that the defendant allegedly assaulted him, and the Supreme Court erred when it instructed the jury that Penal Law § 35.27 applied with respect to the charge of assault in the second degree related to Paramedic Cohn. Since the court’s charge effectively removed from the jury’s consideration the defendant’s justification defense, under the circumstances, the defendant is entitled to a new trial on count one of the indictment charging her with assault in the second degree relating to Paramedic Cohn … . People v Thomas, 2017 NY Slip Op 09178, Second Dept 12-27-17

 

CRIMINAL LAW (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/MUNICIPAL LAW (NYC) (CRIMINAL LAW, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/PARAMEDICS (CRIMINAL LAW, PEACE OFFICERS, THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))/RESISTING ARREST  (THE PARAMEDIC DEFENDANT WAS ACCUSED OF ASSAULTING WAS NOT A PEACE OFFICER AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED, THEREBY EFFECTIVELY NEGATING THE JUSTIFICATION DEFENSE (SECOND DEPT))

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IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, explained an aspect of the rigid proof requirements for summary judgment. Here plaintiff bank moved for summary judgment in a foreclosure action. Defendant, in opposition, raised plaintiff’s failure to demonstrate compliance with a condition precedent in the note. Plaintiff submitted reply papers with proof the condition precedent had been met. The Second Department determined the reply could not be considered and therefore the plaintiff had not made out a prima facie case in its papers:

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As part of her affirmative defenses and counterclaim, the defendant asserted, inter alia, that the plaintiff l… failed to show that it complied with the condition precedent contained in paragraph 7, subsection C, of the note. * * *

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… [T]he plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in paragraph 7, subsection C, of the note…  “[A] party moving for summary judgment cannot meet its prima facie burden by submitting evidence for the first time in reply, and generally, evidence submitted for the first time in reply papers should be disregarded by the court”… . Here, since the defendant raised the issue of compliance with paragraph 7, subsection C, of the note in her affirmative defenses and counterclaim, the plaintiff’s submission for the first time of a copy of the requisite default notice with its reply to the defendant’s opposition to the summary judgment motion was not sufficient to establish its prima facie compliance … . Since the plaintiff failed to meet its prima facie burden on the motion, we need not consider the sufficiency of the defendant’s opposition papers … . Wells Fargo Bank, N.A. v Osias, 2017 NY Slip Op 09195, Second Dept 12-27-17

 

CIVIL PROCEDURE (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/REPLY (SUMMARY JUDGMENT, EVIDENCE, N MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))

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ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment was properly denied in this fraudulent conveyance action. The court offered a particularly clear description of how summary judgment motions are analyzed by the appellate courts. Although plaintiff bears the burden of proof at trial, a defendant bringing a motion for summary judgment bears the burden of proof. Gaps in a defendant’s proof require that the motion be denied, without considering the plaintiff’s opposing papers. Therefore a defendant cannot point to gaps in the plaintiff’s proof as a ground for summary judgment in favor of defendant:

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It is the movant’s burden on a motion for summary judgment to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact”… . Only if the movant succeeds in meeting its burden will the burden shift to the opponent to demonstrate through evidence in admissible form that there exists a triable issue of fact. While the ultimate burden of proof at trial will be borne by the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form … . On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its claim or defense… . Vumbico v Estate of Rose H. Wiltse, 2017 NY Slip Op 09194, Second Dept 12-27-17

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))

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DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT).

The Second Department determined plaintiffs’ declaratory judgment action should have been brought as an Article 78 proceeding and was properly dismissed as untimely. The action concerned alleged violations of height restrictions on new construction which had been the subject of a final environmental impact statement (FEIS):

An action for a declaratory judgment is generally governed by a six-year statute of limitations (see CPLR 213[1]). However, where a declaratory judgment action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period … . Where an action could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies … .

A proceeding pursuant to CPLR article 78 may be brought to review a determination of a public body or officer which is “final and binding upon the petitioner” (CPLR 217[1]; see CPLR 7801[1]). There are two requirements for fixing the time when agency action is final and binding upon the petitioner: “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” … . A determination is final and the statute of limitations begins to run when the agency’s “definitive position on the issue [becomes] readily ascertainable” to the complaining party … , so that the petitioner knew or should have known that it was aggrieved… .

Here, the Supreme Court properly determined that this action could have been brought as a proceeding pursuant to CPLR article 78 … . Save The View Now v Brooklyn Bridge Park Corp., 2017 NY Slip Op 09189, Second Dept 12-27-17

CIVIL PROCEDURE (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/DECLARATORY JUDGMENT  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ARTICLE 78 (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ENVIRONMENTAL LAW (BUILDING HEIGHT RESTRICTIONS , ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ADMINISTRATIVE LAW  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))

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DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, ON APPEAL PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Garden Homes did not demonstrate it had acquired a prescriptive easement over plaintiffs’ (the Patels’) land such that effluent and storm water could be discharged onto plaintiffs’ property. The court further found plaintiffs’ trespass action was proven and sent the matter back for trial on damages:

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” The essence of trespass is the invasion of a person’s interest in the exclusive possession of land'” … . “Accordingly, an action for trespass over the lands of one property owner may not be maintained where the purported trespasser has acquired an easement of way over the land in question'” … .

An easement by prescription may be demonstrated by clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period … , which is 10 years … . ” [T]he right acquired by prescription is commensurate with the right enjoyed'” … .

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Here, Garden Homes could acquire a prescriptive easement for the encroachment of components of its sewage treatment system and the drainage of effluent and storm water only equal in area to that portion of the property actually used during the prescriptive period … . However, the Supreme Court’s determination, made after the nonjury trial, that Garden Homes established by clear and convincing evidence the continuous use of a particular portion of the Patels’ property during the prescriptive period was not warranted by the facts. Accordingly, the court should not have found that Garden Homes had a prescriptive easement over a portion of the Patels’ property … .. Moreover, as the Patels established a continuing trespass … , the complaint in Action No. 1 must be reinstated, the Patels must be awarded judgment against the defendants in Action No. 1 on the issue of liability, and the matter must be remitted … for a continued trial in that action on the issues of damages and injunctive relief, and the entry thereafter of an appropriate amended judgment. Patel v Garden Homes Mgt. Corp., 2017 NY Slip Op 08839, Second Dept 12-20-17

 

REAL PROPERTY (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/EASEMENTS  (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/PRESCRIPTIVE EASEMENT (DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/TRESPASS (DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/STORM WATER  (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))/EFFLUENT  (PRESCRIPTIVE EASEMENTS, TRESPASS, DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT))

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DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-sellers, in the context of a motion to dismiss the complaint, were not entitled to keep the down payment based upon plaintiffs’ failure to attend the closing pursuant to a time of the essence demand. Defendants did not demonstrate they were able to close because there were outstanding liens on the property. In addition, there was a question whether defendants had a duty to speak when plaintiffs requested an adjournment of the closing, an issue that cannot be resolved in a motion to dismiss:

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Here, the mortgage indebtedness on the subject property amounted to $11,265,000, nearly three times the portion of the purchase price due at the closing. The defendants only satisfied $8,850,000 of that indebtedness in October 2014, about six months after the law day. Further, in order to close, the defendants were required to clear other liens of up to $25,000, and deliver their corporation formation documents to the title company, which allegedly was not done.

On the question of specific performance, a purchaser seeking specific performance of a real estate contract must demonstrate that he or she was ready, willing, and able to perform on the contract, regardless of any anticipatory breach by the seller … . An anticipatory breach of the contract excuses the purchaser from tendering performance, but does not excuse the purchaser from the requirement that it be ready, willing, and able to perform … .

The defendants were not required to consent to the adjournment of a time-of-the-essence closing … . However, the question here is whether the defendants had any obligation to respond. A duty to speak arises where there is a duty of fair dealing between the parties pursuant to a contractual relationship, and failure to speak is inconsistent with “honest dealings” and misleads another… .. Such a duty may be created by a course of conduct … . Here, the plaintiff was a tenant of the defendants; therefore, there was a prior course of conduct not explored on this record, as well as opportunities to speak and actual communication between the parties with respect to this transaction one day prior to the law day. 533 Park Ave. Realty, LLC v Park Ave. Bldg. & Roofing Supplies, LLC, 2017 NY Slip Op 08802, Second Dept 12-20-17

 

REAL ESTATE (TIME OF THE ESSENCE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/CONTRACT LAW (REAL ESTATE, TIME OF THE ESSENCE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/TIME OF THE ESSENCE (REAL ESTATE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/DUTY TO SPEAK (REAL ESTATE, TIME OF THE ESSENCE, REQUEST FOR ADJOURNMENT, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT))/SPECIFIC PERFORMANCE (REAL ESTATE, TIME OF THE ESSENCE, DEFENDANTS HAD NOT CLEARED UP LIENS ON THE PROPERTY ON LAW DAY, SO THEY WERE NOT READY TO CLOSE AND WERE NOT ENTITLED TO KEEP PLAINTIFFS’ DOWN PAYMENT, WHETHER DEFENDANTS HAD A DUTY TO SPEAK WHEN PLAINTIFFS ASKED FOR AN ADJOURNMENT OF THE CLOSING CANNOT BE DETERMINED ON A MOTION TO DISMISS (SECOND DEPT)

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TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town did not demonstrate it did not created the dangerous condition in this slip and fall case. The town’s motion for summary judgment should not have been granted:

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Here, the plaintiff alleged in his bill of particulars that the Town negligently caused, permitted, and allowed the barricade to be placed in such a way that a part of the barricade extended out into the line of pedestrian traffic. Thus, to establish its prima facie entitlement to judgment as a matter of law, the Town was required to establish, prima facie, both that it did not receive prior written notice of the condition and that it did not create the condition through an affirmative act of negligence … .

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Although the Town established, prima facie, that it did not have prior written notice of the allegedly negligent positioning of the barricade, it failed to establish, prima facie, that it did not create the allegedly dangerous condition through an affirmative act of negligence. Since the Town’s submissions failed to eliminate all triable issues of fact as to whether it was responsible for the allegedly negligent placement of the barricade, the motion for summary judgment should have been denied regardless of the sufficiency of the papers submitted in opposition … . Toscano v Town of Huntington, 2017 NY Slip Op 08872, Second Dept 12-20-17

 

NEGLIGENCE (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, BUT IT DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION, TOWN’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county’s motion for summary judgment in this action brought by a former jail inmate for injuries related to suicide attempt (by jumping out a window) was properly denied. The defendants failed to demonstrate the attempt was not foreseeable and that the medical care provided was adequate:

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The County owes a duty of care to protect its prisoners, even from self-inflicted harm… . However, the County is not an insurer of prisoner safety and negligence cannot be inferred merely because an incident occurred… . Rather, the County’s duty is limited to providing reasonable care to protect prisoners from risks of harm that are reasonably foreseeable, i.e., those that the County knew or should have known… .

Here, the defendants, as the parties seeking summary judgment, bore the burden of establishing that the injured plaintiff’s attempt to commit suicide was not foreseeable… . … The defendants’ submissions failed to eliminate triable issues of fact as to whether the defendants knew or should have known that the injured plaintiff posed a risk of harm to herself and whether the defendants “failed to use adequate supervision to prevent that which was reasonably foreseeable”… . Moreover, the defendants’ submissions failed to eliminate triable issues of fact as to whether they violated 42 USC § 1983 by depriving the injured plaintiff of her Fourteenth Amendment right to adequate medical care … , and Mr. Iannelli’s claim for loss of consortium … . Iannelli v County of Nassau, 2017 NY Slip Op 08815, Second Dept 12-20-17

 

NEGLIGENCE (MUNICIPAL LAW, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/MUNICIPAL (NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/INMATES (NEGLIGENCE, MUNICIPAL LAW, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/JAILS (NEGLIGENCE, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SUICIDE (MUNICIPAL LAW, NEGLIGENCE, INMATES, COUNTY DID NOT DEMONSTRATE PLAINTIFF’S SUICIDE ATTEMPT WAS NOT FORESEEABLE, PLAINTIFF WAS IN THE COUNTY JAIL AT THE TIME, SHE JUMPED OUT OF A SECOND STORY WINDOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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