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DSS FAILED TO DEMONSTRATE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF FATHER’S PARENTAL RIGHTS REVERSED.

The Second Department, reversing Family Court, determined the Department of Social Services (DSS) did not make diligent efforts to strengthen the relationship between father and the children before seeking termination of the father’s parental rights on the ground of permanent neglect:

 

In proceedings to terminate parental rights based on permanent neglect, the agency must first establish, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship with the child (see Social Services Law § 384-b[7][a]…). The efforts must include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing other services to the parent to overcome the particular problems that separated the parent from his or her child, and informing the parent of his or her child’s progress (see Social Services Law § 384-b[7][f]…). The court “shall also consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent’s ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child” (Social Services Law § 384-b[7][a]).

Here, DSS failed to meet its initial burden of demonstrating that it exercised diligent efforts to strengthen the parental relationship between the father and his children … . DSS’s evidence demonstrated that its caseworkers’ focus was on the mother’s relationship with the children, as she was the initial subject of the proceedings and the father was not a party thereto. Further, although the evidence adduced at the fact-finding hearing showed that the DSS caseworkers advised the father to seek unsupervised visitation with the children since the supervised visits were positive, the evidence also showed that DSS did not support such unsupervised visitation and was aware that the father’s access to the children was limited by the order of protection. Moreover, although DSS scheduled supervised visits between the father and the children and provided the father with notices of regularly scheduled permanency hearings and service plan reviews, it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings … . Further, DSS’s evidence demonstrated that the father satisfied all requests that DSS made of him, which included attending a parenting class and marriage counseling, and showed himself to be a loving and appropriate parent at the supervised visitation sessions.  Matter of Gabriel B. S.-P. (Anonymous) (Franklin S. (Anonymous)), 2016 NY Slip Op 00645, 2nd Dept 2-3-16

 

FAMILY LAW (DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF PARENTAL RIGHTS REVERSED)/PARENTAL RIGHTS (TERMINATION REVERSED, DSS DID NOT MAKE DILIGENT EFFORST TO STRENGTHEN RELATIONSHIP)/TERMINATION OF PARENTAL RIGHTS (REVERSED, DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHENN RELATIONSHIP)

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FRAUD CAUSE OF ACTION STEMMING FROM THE SIGNING OF A DOCUMENT WITHOUT READING IT DISMISSED AS TIME BARRED; RELEVANT STATUTES OF LIMITATIONS AND BURDENS OF PROOF EXPLAINED.

The Second Department determined plaintiff’s cause of action for fraud was time-barred because it accrued when she signed the allegedly fraudulent document without reading it. The court explained the two statutes of limitations which apply to fraud and the related burdens of proof in a motion to dismiss:

 

An action alleging fraud must be commenced within “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it” (CPLR 213[8]; see CPLR 203[g]…). “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” … . “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period”… .

Where a plaintiff relies upon the two-year discovery exception to the six-year limitations period, ” [t]he burden of establishing that the fraud could not have been discovered prior to the two-year period before the commencement of the action rests on the plaintiff who seeks the benefit of the exception'” * * *  … [A]lthough “mere suspicion” will not substitute for knowledge of the fraudulent act …, a plaintiff may not ” shut his [or her] eyes to facts which call for investigation … .

Here, the gravamen of the plaintiff’s complaint is fraud in the factum, that she was induced to sign documents without being advised of their contents … . However, “[a] party who signs a document without any valid excuse for not having read it is conclusively bound’ by its terms” … . In this case, the plaintiff admitted that she neither read nor inquired about the contents of the documents upon which she relies to establish the fraud before she signed them, yet she failed to proffer any valid excuse for her failure to do so. Under these circumstances, the plaintiff is conclusively presumed to have agreed to the terms of those documents … and, accordingly, cannot establish that she lacked knowledge from which she could have discovered the alleged fraud with reasonable diligence … . Cannariato v Cannariato, 2016 NY Slip Op 00650, 2nd Dept 2-3-16

 

FRAUD (TWO STATUTES OF LIMITATIONS EXPLAINED)/FRAUD (SIGNING DOCUMENT WITHOUT READING IT)/CONTRACT LAW (SIGNING DOCUMENT WITHOUT READING CONSTITUTES AGREEMENT)/CIVIL PROCEDURE (PROOF BURDENS RE: MOTION TO DISMISS FRAUD CAUSE OF ACTION AS TIME-BARRED)/STATUTES OF LIMITATIONS (FRAUD)

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AIDING AND ABETTING FRAUD CAUSE OF ACTION AGAINST TITLE INSURANCE COMPANY PROPERLY DISMISSED, THE ALLEGATIONS WERE CONCLUSORY WITH NO SUPPORTING DETAIL.

The Second Department determined a petition to set aside a deed was properly dismissed as against the title insurance company (Fidelity). Fidelity issued a policy to the purchaser of real property which was part of an estate. The petition alleged Fidelity aided and abetted fraud, in that the sale of the insured property was done without the consent of the administrator or Surrogate’s Court. The Second Department held that, absent fraud, a third party could not sue Fidelity for negligence and the allegations of aiding and abetting fraud did not meet pleading requirements:

 

“[A] title company hired by one party is not, absent evidence of fraud, collusion, or other special circumstance, subject to suit for negligent performance by one other than the party who contracted for its services” … . Contrary to the administrator’s contention, the petition fails to state a cause of action against Fidelity to recover damages for aiding and abetting fraud … . “To plead a cause of action to recover damages for aiding and abetting fraud,” the pleading “must allege the existence of an underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud” … . Here, the petition consists of bare, conclusory allegations, without any supporting detail, which do not meet the specificity requirements of CPLR 3016(b) to sufficiently plead the existence of an underlying fraud, knowledge thereof on the part of Fidelity, or substantial assistance in achievement of the fraud … . Matter of Woodson (Clarke), 2016 NY Slip Op 00698, 2nd Dept 2-3-16

 

FRAUD (CONCLUSORY ALLEGATIONS OF AIDING AND ABETTING FRAUD INSUFFICIENT)/CIVIL PROCEDURE (CONCLUSORY ALLEGATIONS OF AIDING AND ABETTING FRAUD INSUFFICIENT)/REAL ESTATE (TITLE INSURANCE COMPANY HIRED BY ONE PARTY, ABSENT FRAUD, CAN NOT BE SUED FOR NEGLIGENCE BY THIRD PARTY)/TITLE INSURANCE (TITLE INSURANCE COMPANY HIRED BY ONE PARTY, ABSENT FRAUD, CAN NOT BE SUED FOR NEGLIGENCE BY THIRD PARTY)

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DEFAMATION CRITERIA FOR A PUBLIC FIGURE DESCRIBED; APPELLATE REVIEW POWERS IN PUBLIC FIGURE DEFAMATION ACTIONS EXPLAINED.

In affirming Supreme Court’s denial of a motion to set aside the verdict in a defamation action, the Second Department explained the law as it relates to public figures (here plaintiff was a school superintendent) and the unique powers of the appellate courts in this context. The defamation verdict related to a remark on a website stating plaintiff had procured enhanced grades for his daughter:

 

The Constitution, as interpreted in the New York Times case, bars the plaintiff “from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” … . Actual malice must be proved by “clear and convincing evidence” … . The Court of Appeals has recognized that “[t]he usual deference paid by courts to jury verdicts is inapplicable in cases subject to the New York Times Co. v Sullivan rule” … . “[T]he appellate court must make a de novo review of the entire record, and determine whether the proof before the trial court supports the finding of actual malice with convincing clarity” … . Eastwood v Hoefer, 2016 NY Slip Op 00674, 2nd Dept 2-3-16

 

DEFAMATION (CRITERIA FOR PUBLIC FIGURES EXPLAINED)/DEFAMATION (APPELLATE REVIEW POWERS IN PUBLIC-FIGURE DEFAMATION CASES)/APPEALS (APPELLATE REVIEW POWERS IN PUBLIC-FIGURE DEFAMATION CASES)

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LIABILITY OF MEMBERS OF A LIMITED LIABILITY COMPANY, PRECLUSION OF FRAUD AND NEGLIGENT MISREPRESENTATION CAUSES ACTION WHICH DUPLICATE BREACH OF CONTRACT ALLEGATIONS, AND CRITERIA FOR A RICO MAIL FRAUD CAUSE OF ACTION DISCUSSED IN SOME DEPTH.

In an action against a limited liability company alleging breach of contract and fraudulent inducement relating to the design, construction and marketing of a condominium, the Second Department included substantial discussions of, inter alia, the liability of members of limited liability companies, including the criteria for piercing the corporate veil in this context, the preclusion of fraud and negligent misrepresentation causes of action which are duplicative of breach of contract allegations, and the criteria for a RICO mail fraud cause of action. With respect to the liability of members of limited liability companies, the court explained:

 

… [A] member of a limited liability company will not be held liable for the liabilities of the company solely by reason of being a member of the company or acting in such capacity or participating in the conduct of the business of the company (see Limited Liability Company Law § 609[a]). “[M]embers of limited liability companies, such as corporate officers, may be held personally liable if they participate in the commission of a tort in furtherance of company business” … . * * *

A member of a limited liability company “cannot be held liable for the company’s obligations by virtue of his [or her] status as a member thereof” … . “[A] party may seek to hold a member of an LLC individually liable despite this statutory proscription by application of the doctrine of piercing the corporate veil” … .

To state a cause of action under the doctrine of piercing the corporate veil, the “plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation [or LLC] and abused the privilege of doing business in the corporate [or LLC] form to perpetrate a wrong or injustice'” … “Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to LLC formalities, inadequate capitalization, commingling of assets, and the personal use of LLC funds” … . Board of Mgrs. of Beacon Tower Condominium v 85 Adams St., LLC, 2016 NY Slip Op 00692, 2nd Dept 2-3-16

 

CORPORATION LAW (LIABILITY OF MEMBERS OF LIMITED LIABILITY COMPANIES)/LIMITED LIABILITY COMPANIES (LIABILITY OF MEMBERS)/PIERCING THE CORPORATE VEIL (LIMITED LIABILITY COMPANIES)/CONTRACT LAW (PRECLUSION OF DUPLICATIVE FRAUD AND MISREPRESENTATION CAUSES OF ACTION)/MAIL FRAUD (RICO PLEADING REQUIREMENTS)/RICO (CIVIL, MAIL FRAUD PLEADING REQUIREMENTS)

QUESTIONS OF FACT WHETHER THERE WAS A MEETING OF THE MINDS AND WHETHER WRITINGS, INCLUDING AN EMAIL, SATISFIED THE STATUTE OF FRAUDS.

The Second Department, in a contract action, determined there were questions of fact precluding summary judgment in a contract action. The court explained the black letter law re: a “meeting of the minds” and writings, including emails, sufficient to satisfy the statute of frauds:

 

” In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look . . . to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds'” … . While it is the responsibility of the court to interpret written instruments, where a finding of whether an intent to contract is dependent as well on other evidence from which differing inferences may be drawn, a question of fact arises … . Here, the evidence submitted by the plaintiffs failed to eliminate triable issues of fact regarding whether there was a meeting of the minds sufficient to give rise to a binding and enforceable contract. …

To satisfy the statute of frauds, an agreement “need not be contained in one single document, but rather may be furnished by piecing together other, related writings” … . Further, all of the terms of the contract “must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged” … . “An e-mail sent by a party, under which the sending party’s name is typed, can constitute a [signed] writing for [the] purposes of the statute of frauds” … . Here, the terms of the alleged agreement were set forth in various writings, including an email and an assignment signed by the plaintiff … . Agosta v Fast Sys. Corp., 2016 NY Slip Op 00699, 2nd Dept 2-3-16

 

MALICIOUS PROSECUTION (QUESTIONS OF FACT RE: ABSENCE OF PROBABLE CAUSE AND PASSING FALSE INFORMATION TO THE PROSECUTOR PRECLUDED SUMMARY JUDGMENT IN FAVOR OF POLICE OFFICERS)/FALSE ARREST (QUESTIONS OF FACT RE: ABSENCE OF PROBABLE CAUSE PRECLUDED SUMMARY JUDGMENT IN FAVOR OF POLICE OFFICERS)

DOG-BITE STRICT LIABILITY LAW SUCCINCTLY EXPLAINED, DOG-OWNER’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

In this dog-bite case, defendant dog-owner’s cross motion for summary judgment should have been granted. The Second Department explained the relevant law:

 

Aside from the limited exception … regarding a farm animal that strays from the place where it is kept …, which is not at issue here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . Thus, “[t]o recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” … . Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” … .

In support of their cross motion, the defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating, via their affidavits, that they were not aware, and should not have been aware, that their dog had ever bitten anyone or exhibited any aggressive behavior prior to the subject attack … . The defendants averred that they had no knowledge that their dog had ever acted in a hostile or an aggressive manner, and that it had never attacked, bitten, scratched, or otherwise acted in a violent or a belligerent manner towards any human or towards another dog prior to the subject incident … . Bueno v Seecharan, 2016 NY Slip Op 00706, 2nd Dept 2-3-16

 

ANIMAL LAW (DOG BITE STRICT LIABILITY LAW SUCCINCTLY EXPLAINED)/DOG-BITE (DOG-OWNER’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, LAW EXPLAINED)

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SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF PETITIONER’S DRIVER’S LICENSE FOR REFUSING TO SUBMIT TO A CHEMICAL BLOOD-ALCOHOL TEST; TROOPER DID NOT HAVE REASONABLE GROUNDS TO BELIEVE PETITIONER OPERATED HIS MOTORCYCLE UNDER THE INFLUENCE.

The Second Department annulled the determination by the Department of Motor Vehicles that petitioner’s license was properly revoked for refusing to submit to a chemical blood-alcohol test. Petitioner had an accident while riding his motorcycle which, he alleged, was caused by a coyote running into his bike. No other vehicles were involved. The trooper who charged petitioner with driving while intoxicated did not witness the accident or conduct any sobriety tests. The trooper based the charge solely on detecting the odor of alcohol on petitioner’s breath two hours after the accident at the hospital. The Second Department determined substantial evidence did not support the Department’s finding the trooper had reasonable grounds to believe petitioner was operating the motorcycle while under the influence:

 

As a prerequisite to the chemical test, the Trooper had to have reasonable grounds to believe that the petitioner was operating his motorcycle while under the influence of alcohol (see Vehicle Traffic Law § 1194[2]). Reasonable grounds are to be determined on the basis of the totality of the circumstances (see Vehicle and Traffic Law § 1194[2][a][3]). Here, the Trooper did not witness the circumstances leading to the accident or the accident itself, and his report states that no field sobriety tests were conducted at the scene. Other than the statement in the report that there was a strong odor of alcoholic beverage on the petitioner’s breath, there was no evidence that would suggest the petitioner operated his vehicle in an intoxicated state … . Accordingly, the totality of circumstances did not warrant the determination that the petitioner violated Vehicle and Traffic Law § 1194 by refusing to submit to a chemical test and to revoke the petitioner’s driver license. Matter of DeMichele v Department of Motor Vehs. of N.Y. State, 2016 NY Slip Op 00652, 2nd Dept 2-3-16

 

ADMINSTRATIVE LAW (VEHICLE AND TRAFFIC LAW, SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)/DRIVING WHILE INTOXICATED (SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)/CHEMICAL TEST (DRIVING WHILE INTOXICATED, SUBSTANTIAL EVIDENCE DID NOT SUPPORT REVOCATION OF LICENSE BASED ON CHEMICAL TEST REFUSAL)

DEVISE OF REAL PROPERTY HAD NOT ADEEMED, DESPITE DEED PURPORTING TO TRANSFER PROPERTY PRIOR TO DEATH.

The will bequeathed real property to decedent’s two daughters, Watson and Fitzsimmons, with a life estate to Watson. Before decedent’s death Watson used a power of attorney to deed the property to herself. The Second Department determined decedent retained equitable title to the property at death. The deed was determined to be voidable, not void ab initio, and was not declared void until after death. Fitzsimmons argued that the devise of the property adeemed because it was not in decedent’s estate at death. Therefore, Fitzsimmons argued, the life estate awarded Watson in the will was cut off. Affirming Surrogate’s Court, the Second Department held the devise of the property had not adeemed:

 

The doctrine of ademption provides that “[u]nless the property devised or the thing bequeathed was found in the estate of the [decedent] at the time of [his or] her death, the will was necessarily inoperative as to that provision” … . Fitzsimmons asserted that because the deed to Watson was not void ab initio and was not declared void until after the decedent’s death, the decedent did not own the property at the time of her death, having deeded it to Watson. As such, Fitzsimmons contended that the devise of the property in the will adeemed, and that the property should pass through the residuary estate, which left 50% each to Fitzsimmons and Watson, thereby cutting off Watson’s life estate.

Under the particular circumstances of this case, the Surrogate’s Court properly held that the specific devise of property should not be determined to have adeemed, although it was not owned by the decedent at the time of her death. The deed by which the property was transferred to Watson was voidable, and thus, the decedent retained equitable title to the property, which title reverted to her estate when Fitzsimmons successfully asserted the estate’s claims to it … . Matter of Hill, 2016 NY Slip Op 00499, 2nd Dept 1-27-16

 

TRUSTS AND ESTATES (DEVISE OF REAL PROPERTY HAD NOT ADEEMED)/ADEMPTION (DEVISE OF REAL PROPERTY HAD NOT ADEEMED DESPITE DEED PURPORTING TO TRANSFER PROPERTY PRIOR TO DEATH)/DEEDS (VOIDABLE DEED, DECEDENT RETAINED EQUITABLE TITLE AT DEATH)

EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS EVEN IF NOT SPECIFICALLY MENTIONED IN THE DEED.

The Second Department, in affirming the grant of summary judgment to plaintiffs, explained the criteria for an easement appurtenant and noted that such an easement passes to subsequent purchasers without an express provision in the subsequent deed:

 

“An easement appurtenant is created for the benefit of its owner’s use and possession of his real property” … . “An easement appurtenant occurs when the easement (1) is conveyed in writing, (2) is subscribed by the creator, and (3) burdens the servient estate for the benefit of the dominant estate” … . The easement will “pass[ ] to subsequent owners of the dominant estate through appurtenance clauses, even if it is not specifically mentioned in the deed” … . Reilly v Achitoff, 2016 NY Slip Op 00491, 2nd Dept 1-27-16

 

REAL PROPERTY (EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS)/EASEMENTS (EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS)/DEEDS (EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS WITHOUT MENTION IN THE DEED)

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