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Order of Protection Reversed–Family Court Did Not Have Subject Matter Jurisdiction—Party Ordered to Stay Away Was Not Related to, a Member of the Household of, or in an Intimate Relationship With, the Subject of the Order of Protection

The Second Department determined Family Court did not have subject matter jurisdiction pursuant to Family Court Act 812 and could not, therefore, issue an order of protection to a person, Kirton, who was not a party to a family offense proceeding. Family Court’s jurisdiction in a family offense proceeding is limited to certain acts which occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct Act § 812[1]…). [M]embers of the same family or household include, among others, persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time… ” [internal quotation marks omitted] Here the party to whom the order of protection was issued, Kirton, was not related in any way to, was not a member of the household of, and did not have an intimate relationship with the petitioner, Cambre (from whom Kirton was ordered to stay away):

The Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute … . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct Act § 812[1]…). “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … .

Here, Kirton and Cambre have no direct relationship … . The record … demonstrates that they met for the first time during the course of the court proceedings, and have no ongoing relationship … . Accordingly, the undisputed facts establish that there is no “intimate relationship” between the parties within the meaning of Family Court Act § 812(1)(e)… . Consequently, since the parties do not have an “intimate relationship” within the meaning of Family Court Act § 812 (1)(e), the Family Court lacked subject matter jurisdiction, the order of protection must be reversed, the petition denied, and the proceeding dismissed. Matter of Cambre v Kirton, 2015 NY Slip Op 06242, 2nd Dept 7-22-15 

 

Analytical Criteria for a Motion to Dismiss for Failure to State a Cause of Action Where Plaintiff Submits an Affidavit/Analytical Criteria for a Motion to Amend the Complaint

The Second Department determined the motion to dismiss for failure to state a cause of action should not have been granted with respect to one of the defendants, and the motion to amend the complaint should have been granted. The court explained the proper way to handle a motion to dismiss for failure to state a cause of action when the plaintiff submits an affidavit in opposition, as well as the criteria for a motion to amend the complaint:

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), “the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), affidavits may be received for a limited purpose only, usually to remedy defects in the complaint, and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … * * *

CPLR 3025(b) provides that courts may grant leave to parties to amend or supplement their pleadings, and, “[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Here, the Supreme Court improperly denied that branch of the plaintiff’s cross motion which was pursuant to CPLR 3025(b) for leave to amend the complaint insofar as asserted against [one defendant]. No surprise or prejudice resulted from any delay in the plaintiff’s motion, and the proposed amendment is neither palpably insufficient nor patently without merit insofar as it pertains to that defendant … . Tirpack v 125 N. 10, LLC, 2015 NY Slip Op 06236, 2nd Dept 7-22-15

 

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Original Grantor Has the Power to Remove Restrictive Covenants from a Deed/Land Conveyed for Public Use Which Is Subject to a Condition Subsequent (Here a Reversionary Interest in the Deed) Is Not Covered by the Public Trust Doctrine (Legislative Approval for Conveyance for Private Use Not Required)

The Second Department upheld an agreement to remove restrictive covenants from a deed, allowing the village, to which the property had been conveyed, to retain the property free and clear from restrictions. The deed to the village from the Ortenbergs (husband and wife) included a covenant that the property would remain in its natural state for public purposes for the life of the village.  If the village ceased maintaining the property in a natural state, or if the village ceased to exist, the property reverted to the Ortenbergs, their heirs and assigns. After Mrs. Ortenberg died, Mr. Orternberg entered an agreement with the village to remove the restrictive covenants. The petitioners, owners of contiguous land, brought an Article 78 petition arguing that the agreement violated the public trust doctrine which requires the approval of the New York State Legislature before the land held for public use could be converted to private use.  The Second Department noted that the public trust doctrine does not apply to land conveyed for public use subject to a condition subsequent (the reversionary interest). The court also noted that the agreement was not subject to the State Environmental Quality Review Act (SEQRA):

Ortenberg, as the grantor, had the authority to release the Village from its obligation to perform the conditions in the deed and thereupon waive and terminate his reversionary interest (… see a… EPTL 6-5.1). Moreover, the Village was not required to obtain the approval of the New York State Legislature before mutually rescinding the underlying agreement with Ortenberg. Under the public trust doctrine, “a municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private” …, but this doctrine is inapplicable to property which is subject to a reversionary interest … . Where “the land acquired by the [municipality] for public . . . purposes was conveyed subject to a condition subsequent it is not under the control of the Legislature” … . Matter of Rappaport v Village of Saltaire, 2015 NY Slip Op 06246, 2nd Dept 7-22-15

 

Broker Entitled to a Commission Despite Purchaser’s Wish Not to Work with the Broker Any Further

The Second Department determined a broker who had negotiated extensively on behalf of the purchaser, but was not named as a broker entitled to a commission in the operative contract (because the purchaser did not want to work with that broker any further), was entitled to a commission. The court explained the relevant law:

In order to recover a real estate brokerage commission, a broker must establish: (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the transaction . “To establish that a broker was the procuring cause of a transaction, the broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation” … . Sholom & Zuckerbrot Realty, LLC v Gallant, 2015 NY Slip Op 06231, 2nd Dept 7-22-15

 

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Failure to Timely Submit a Proposed Judgment of Divorce Did Not Constitute Abandonment of the Divorce Action/Decedent’s Death Before the Judgment of Divorce Was Entered Did Not Abate the Divorce Action/The Stipulation of Settlement (Re: the Divorce), In Which the Parties Agreed They Were No Longer the Beneficiaries of Each Other’s Wills, Was Enforceable

Decedent and her husband had entered a stipulation of settlement and all matters related to their divorce had been settled at the time of decedent’s death. Only the submission of the proposed judgment of divorce remained. The stipulation of settlement included the parties’ agreement that they were no longer the beneficiaries of each other’s wills. Decedent’s husband sought letters testamentary and a share in the estate, arguing that, because the proposed judgment of divorce was not submitted by decedent, decedent had abandoned the divorce action. Surrogate’s court agreed the divorce action had been abandoned and found there was a question of fact whether the stipulation of settlement was enforceable.  The Second Department reversed, finding that the divorce action was not abandoned and the stipulation of settlement was enforceable. Decedent’s husband, therefore, had no right to share in decedent’s estate:

Contrary to the Surrogate Court’s determination, the decedent did not abandon the divorce action pursuant to 22 NYCRR 202.48 by failing to timely submit a proposed judgment within 60 days of the Supreme Court’s verbal direction. Since the 60-day time period to submit a proposed judgment under 22 NYCRR 202.48(a) does not run until “after the signing and filing of the decision directing that the [judgment] be settled or submitted,” and the court’s direction was not reduced to a written decision, there was no violation of that rule here … . Furthermore, since all issues in the divorce action had been resolved at the time of the decedent’s death, the Supreme Court had adjudged that the decedent was entitled to a divorce, and nothing remained to be done except the ministerial entry of a judgment of divorce, the decedent’s death did not abate the divorce action … . Under these circumstances “the parties’ substantive rights should be determined as if the judgment of divorce had been entered immediately as of the time nothing remained to be done except enter a judgment” …, and the stipulation of settlement is thus enforceable as a matter of law. Moreover, since the stipulation of settlement contained language which “clearly and unequivocally manifests an intent on the part of the spouses that they are no longer beneficiaries under each other’s wills” …, the stipulation of settlement revoked any testamentary disposition in Carmine’s favor under EPTL 3-4.3, regardless of whether it was ultimately followed by a formal dissolution of the marriage … . Matter of Rivera, 2015 NY Slip Op 06247, 2nd Dept 7-22-15

 

“Voluntary Payment Doctrine” Explained and Applied to Preclude Recovery

The Second Department determined the “voluntary payment doctrine” precluded recovery against the defendant. Plaintiff had an agreement with a consignee that plaintiff’s liability associated with the export of fine art would be limited to $40,000. Plaintiff hired defendant to transport the fine art to the consignee, but the art was seized by customs because the documentation was incomplete. The plaintiff, despite the $40,000 liability cap, voluntarily compensated the consignee for its loss (around $240,000). Then plaintiff sued defendant for the $240,000. Because the plaintiff made that payment voluntarily, the “voluntary payment doctrine” required dismissal of the complaint:

“[T]he voluntary payment doctrine . . . bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law through the submission of, among other things, a copy of the contract between the plaintiff and the consignee, which included the limitation of liability provision that capped the plaintiff’s liability to the consignee at $40,000. This demonstrated, prima facie, that the plaintiff’s payment to the consignee of anything more than $40,000 was voluntary … . Further, the defendant demonstrated, prima face, that the plaintiff recovered the full $40,000 for which it was liable to the consignee from its insurance company. Hedley’s, Inc. v Airwaves Global Logistics, LLC, 2015 NY Slip Op 06215, 2nd Dept 7-22-15

 

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Question of Fact Whether Softball Coach’s Having Infant Plaintiff Practice Sliding on Grass Increased the Inherent Risk of the Activity Precluded Summary Judgment

The Second Department determined the defendant school district did not demonstrate, in its motion for summary judgment, that the softball coach’s having infant plaintiff practice sliding on grass did not unreasonably increase the inherent risk of the activity. Therefore the school district’s motion was properly denied without any consideration of the opposing papers:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This includes risks associated with the construction of the playing surface and any open and obvious condition on it … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . ” [A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff'”… .

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case … . Here, the defendants failed to establish, prima facie, that the infant’s coach, by having her perform an infield sliding drill on the subject grass field, did not unreasonably increase the inherent risks of the activity … . Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the motion and cross motion were properly denied, and the Court need not determine the sufficiency of the plaintiff’s opposition papers … . Brown v Roosevelt Union Free School Dist., 2015 NY Slip Op 06204, 2nd Dept 7-22-15

 

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A Defendant’s Status as an Undocumented Alien Cannot Be the Sole Ground for Imposing Incarceration As Opposed to Probation

In a case of first impression, the Second Department, in a full-fledged opinion by Justice Dillon, determined that a defendant’s status as an undocumented alien cannot constitute the sole reason for a sentence of incarceration as opposed to probation. County Court reasoned that as soon as a sentence of probation was imposed upon an undocumented alien, the defendant would be in violation of probation by virtue of his/her undocumented status. Therefore, County Court concluded, a sentence of probation was not available to any undocumented alien. The Second Department disagreed, holding that a defendant’s status as an undocumented alien can be considered in determining the appropriate sentence, but it cannot be the sole ground for imposing a sentence of incarceration. To pre-determine that an undocumented alien is not eligible for probation violates due process and equal protection, constitutional rights which are afforded undocumented aliens:

… [W]e reach two conclusions. First, courts may appropriately consider a defendant’s undocumented immigration status in imposing criminal sentences. The decision to impose or not impose a sentence of probation may legitimately be affected by factors directly related to undocumented status. Those factors include, but are not necessarily limited to, the likelihood of the defendant’s deportation during the probationary period, the defendant’s history, if any, of repeated departures from and illegal reentries into the United States, the presence or absence of family in the United States, the defendant’s employment history, and the defendant’s legal employability. Second, it is impermissible for a sentencing court to refuse to consider a sentence of probation for an undocumented defendant solely on the basis of his or her immigration status. Doing so violates the Due Process and Equal Protection clauses of the Federal and New York constitutions by treating certain defendants differently from others based upon their undocumented presence in this state. In other words, a defendant’s undocumented immigration status may be a factor a court takes into account in determining whether to include probation as part of a sentence, but such status cannot be the sole factor a court relies upon in denying a probationary sentence and in imposing a term of imprisonment instead. People v Cesar, 2015 NY Slip Op 06252, 2nd Dept 7-22-15

 

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General Obligations Law Prohibition of Indemnification Agreements Which Exempt a Lessor from Its Own Negligence Does Not Apply to a Commercial Lease Negotiated at Arm’s Length Between Sophisticated Parties With an Insurance Procurement Requirement

The Second Department determined the lessor of a shopping center, Montauk Properties, under the terms of its lease with a supermarket, Gambar Food, was entitled to indemnification re: plaintiff’s slip and fall on a sidewalk in front of the supermarket.  Although the terms of the lease exempted the lessor from liability for its own negligence, which is a violation of General Obligations Law (GOL) 5-321, GOL 5-231 does not apply to a commercial lease negotiated at arm’s length between sophisticated parties with an insurance procurement requirement:

The lease between Montauk Properties and Gambar Food requires Gambar Food to indemnify Montauk Properties “for any matter or thing growing out of the occupation of the demised premises or of the streets, sidewalks or vaults adjacent thereto.” The plaintiff’s accident falls within the scope of this indemnification provision …, which, under its broadly drawn language, obligates Gambar Food to indemnify Montauk Properties for its own negligence. Although General Obligations Law § 5-321 provides that an agreement that purports to exempt a lessor from its own negligence is void and unenforceable, the subject indemnification provision is not rendered unenforceable by this statute. “[W]here, as here, the liability is to a third party, General Obligations Law § 5-321 does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm’s length between two sophisticated parties when coupled with an insurance procurement requirement” … . Campisi v Gambar Food Corp., 2015 NY Slip Op 06205, 2nd Dept 7-22-15

 

Prosecutor’s Reasons for Challenging an Hispanic Juror Were Pretextual—New Trial Ordered

The Second Department determined the prosecutor’s proffered reason for challenging an Hispanic juror was pretextual and ordered a new trial. Two Hispanic jurors were challenged by the prosecutor. The prosecutor’s reason for challenging one of them was the juror’s alleged inability to understand questions. The Second Department determined there was no support for that reason in the record:

… [A] new trial is necessary because the prosecutor exercised one of her peremptory challenges in a discriminatory manner with respect to a Hispanic male prospective juror … . Under both state and federal law, the use of peremptory challenges in a racially discriminatory manner is prohibited … . Trial courts must follow a three-step protocol to determine whether a party has used its peremptory challenges in a racially discriminatory manner. First, the moving party contesting the peremptory challenges must allege sufficient facts to make a prima facie showing that the prospective jurors were challenged because of race … . Where the moving party makes such a prima facie showing, the burden shifts to the nonmoving party to offer a race-neutral reason for each of the disputed peremptory challenges … . If such reasons are offered, the burden shifts back to the moving party to demonstrate that the reasons, although facially neutral, are pretextual … . The third step requires the trial court to make an ultimate determination as to whether the proffered reasons are pretextual … . * * *

Contrary to the trial court’s determination, the facially race-neutral reason proffered by the prosecutor for exercising a peremptory challenge with respect to the Hispanic male prospective juror was pretextual. Although the prosecutor argued that this prospective juror had a difficult time understanding the trial court’s questions during voir dire, this claim is not borne out by the record. Rather, the record shows that the prospective juror was repeatedly asked the same question regarding his willingness to follow the law and assured the trial court more than once that he would follow the law as it was provided. While this prospective juror asked for one of the court’s questions to be repeated, and expressed that he did not understand compound questions when they were asked of him, never during the questioning by the trial court did he give a conflicting answer or state that he would not or could not follow the law. Indeed, any appearance of a lack of understanding on the part of this prospective juror is attributable to confusion caused by the manner in which the trial court intervened during the prosecutor’s questioning of the juror: while a question was pending before the juror, the court asked compound questions of him.

Moreover, the prosecutor’s failure to pursue questioning of this prospective juror, whom she purportedly believed could not follow the law, despite repeated assurances by the prospective juror to the contrary, also renders the basis for the challenge pretextual … . People v Fabregas, 2015 NY Slip Op 06253, 2nd Dept 7-22-15

 

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