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Grandparents Did Not Have Standing to Bring a Petition for Visitation

The Second Department determined Family Court properly dismissed the grandparents’ petition for visitation with the grandchildren without a hearing. Family Court properly determined the grandparents did not have standing to bring the petition because no triable issues of fact were raised in the submitted papers. The standing question is determined by applying equitable principles re: the nature of the grandparents’ relationship with the children and the nature and basis of the parents’ objection to visitation:

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” … . “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” … .

“In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72[1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” … . Additionally, the court must consider ” the nature and basis of the parents’ objection to visitation'” … . “A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers” … .

Here, the Family Court properly denied the grandparents’ petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents … . Matter of Moskowitz v Moskowitz, 2015 NY Slip Op 04490, 2nd Dept 5-27-15

 

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The Amount of Alcohol Consumed by Defendant and the Extent of His Intoxication at the Time of the Vehicle-Accident Evinced “Wanton and Reckless” Conduct Which Supported a Punitive-Damages Award

The Second Department determined the award of punitive damages by the jury was supported by clear and convincing evidence.  Defendant was intoxicated at the time of the vehicle accident.  The fact that defendant was driving while intoxicated would not, standing alone, warrant punitive damages. However, other factors, including defendant’s high blood-alcohol level and his “incoherence” at the time of the accident evinced the requisite “wanton and reckless” conduct:

Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages … . However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in “wanton and reckless” conduct evincing heedlessness and an utter disregard for the safety of others … . Chiara v Dernago, 2015 NY Slip Op 04444, 2nd Dept 5-27-15

 

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Conclusory Affidavit Insufficient to Meet Burden of Demonstrating Documents Were Privileged Because the Documents Were Prepared Solely In Anticipation of Litigation—Motion for a Protective Order Limiting Discovery Properly Denied

The Second Department determined the appellants were not entitled to a protective order precluding discovery of documents pursuant to CPLR 3103.  The appellants argued the documents were privileged because they were prepared in anticipation of litigation.  However, the conclusory attorney affidavit offered in support of the protective order did not meet the appellants’ burden to demonstrate the specific documents sought were “prepared solely in anticipation of litigation or trial…”:

CPLR 3101(a) mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Unlimited disclosure is not mandated, however, and a court may issue a protective order pursuant to CPLR 3103 denying, limiting, conditioning or regulating the use of any disclosure device “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103[a]…). “The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” … .

In support of that branch of their motion which was pursuant to CPLR 3103 for a protective order preventing the disclosure of certain witness statements and certain investigation and inspection reports, the appellants contended that such evidence was privileged as it was prepared in anticipation of litigation (see CPLR 3101[d][2]). “The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . Such burden is met “by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … .

Here, the appellants failed to meet their burden of establishing that the requested material was prepared solely in anticipation of litigation and, therefore, is protected from disclosure by the qualified immunity privilege of CPLR 3101(d)(2). An attorney’s affirmation containing conclusory assertions that requested materials are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain a party’s burden of demonstrating that the materials were prepared exclusively for litigation … . Ligoure v City of New York, 2015 NY Slip Op 04456, 2nd Dept 5-27-15

 

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Application for Area Variances Properly Denied—Court’s Review Criteria Explained—General City Law and Town Law Criteria for Area Variance Explained

The Second Department determined the city zoning board properly denied the application for area variances.  The court explained its role in reviewing the board’s determination and the criteria applied to applications for area variances under the General City Law and the Town Law:

” Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'” … . “Therefore, a zoning board’s determination should be sustained if it is not illegal, has a rational basis, and is not arbitrary and capricious” … .

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing “the benefit to the applicant if the variance is granted . . . against the detriment to the health, safety and welfare of the neighborhood or community by such grant” (General City Law § 81-b[4][b];… see also Town Law § 267-b[3]). The zoning board must also consider: “(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (ii) whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (General City Law § 81-b[4][b]…). Matter of Goodman v City of Long Beach, 2015 NY Slip Op 04484, 2nd Dept 5-27-15

 

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“Whistleblower Statute” Cause of Action Should Have Survived the Motion to Dismiss—No Need to Cite Particular Statute, Rule or Regulation Alleged to Have Been Violated by the Employer in the Complaint

The Second Department determined plaintiff’s Labor Law 740 cause of action should have survived a motion to dismiss for failure to state a cause of action.  “A cause of action based upon Labor Law § 740, commonly known as the ‘whistleblower statute,’ is available to an employee who ‘discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety’…”. The court noted that, to survive dismissal, the particular law, rule or regulation which was purportedly violated need not be specified in the complaint:

Here, the amended complaint alleged, inter alia, that the plaintiff’s employment with the corporate defendants was terminated after he complained to the individual defendants and the human resources department about certain activities and practices which the corporate defendants engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public safety. Notably, “for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct” … . Ulysse v AAR Aircraft Component Servs., 2015 NY Slip Op 04474, 2nd Dept 5-27-15

 

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Town Board Should Not Have Considered the Environmental Impact of Only One Small Part of a Revitalization Project, as Opposed to the Entire Revitalization Project, without Explaining the Reasons for Limiting Its Review In Accordance with the Requirements of the State Environmental Quality Review Act

The Second Department determined the town board did not complete the required review under the State Environmental Quality Review Act (SEQRA) in connection with an Eminent Domain Procedure Law (EDPL) 207 proceeding to condemn certain land for drainage and storm water management improvements (drainage plan).  Even though the drainage plan is part of a much larger revitalization plan, the town board considered only the drainage plan in its SEQRA review, a limited review which can be done only if certain SEQRA requirements are met.  The matter was remitted to the town board for compliance with the relevant provisions of SEQRA:

…[U]nder SEQRA, the Town Board was obligated to consider the environmental concerns raised by the entire project (see 6 NYCRR 617.3[g][1]…). If, at this stage, the larger project is merely speculative or hypothetical, then the Town’s separate consideration of the drainage plan would not constitute impermissible segmentation … . However, the respondents are not claiming that the larger project is speculative or hypothetical. Moreover, to the extent that the Town Board concluded that segmenting the environmental review of the drainage plan from that of the larger revitalization project was warranted under the circumstances presented here, it was required under the SEQRA regulations to “clearly state in its determination of significance . . . the supporting reasons[,]” “demonstrate that such review is clearly no less protective of the environment[,]” and to identify and discuss “[r]elated actions . . . to the fullest extent possible” (6 NYCRR 617.3[g][1]). The Town Board failed to do so. Since the Town Board failed to properly comply with SEQRA, the determination and findings must be rejected, and the matter remitted to the Town Board to undertake an appropriate review … . Matter of J. Owens Bldg. Co., Inc. v Town of Clarkstown, 2015 NY Slip Op 04487, 2nd Dept 5-27-15

 

“Conclusory” Affidavit Submitted In Support of Motion to Dismiss for Failure to State a Cause of Action Did Not Demonstrate the Allegation Defendants Were Directly Liable for Negligent Maintenance of a Taxi Cab Was “Not a Fact At All”—Analytical Criteria Explained

The Second Department determined plaintiff’s complaint should not have been dismissed in its entirety because the documentary evidence submitted in support of the motion to dismiss for failure to state a cause of action (CPLR 3211(a)(7)) did not demonstrate the facts alleged (which could support defendants’ direct liability for negligent maintenance of a taxi cab) “were not facts at all.” Plaintiff was injured when his motorcycle struck a tire which had come off defendants’ taxi cab. Although the information in the affidavit submitted by a defendant was sufficient to warrant the dismissal of causes of action which relied on piercing the corporate veil, the information did not demonstrate defendants could not be directly liable for negligent maintenance of the cab. The related causes of action should not have been dismissed.  The Second Department explained the analytical criteria to be applied when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:

“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” … . Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, “the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … .

Here, [defendant’s] affidavit falls short of establishing, conclusively, that [plaintiff] has no cause of action. The affidavit completely fails to address [plaintiff’s] allegation that the subject taxi was not “roadworthy.” The affidavit, while offering conclusory statements, did not supply competent evidence as to which of the various defendants, if any, might have had a duty to maintain, or might in fact have maintained, the offending taxi prior to the accident. Indeed, [defendant’s] conclusory statements are completely unsupported with evidence or specific factual references … and, hence, are of no probative force … . Rathje v Tomitz, 2015 NY Slip Op 04467, 2nd Dept, 5-27-15

 

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Promissory Note Reflecting a Loan to a Limited Liability Company Was Criminally Usurious As Well As Void Under the General Obligations Law—Provision Purporting to Reduce the Interest Rate to a Non-Usurious Rate If the Original Rate Were Found to be Usurious Did Not Save the Note

The Second Department determined a promissory note imposing an annual interest rate of more than 25% (60% here) was criminally usurious (Penal Law 190.40) and could not be saved by a provision purporting to reduce the interest rate to a non-usurious rate if the original rate were found to be usurious. The court noted that, although a limited liability company (the defendant here) cannot assert the defense of civil usury, a limited liability company can assert the defense of criminal usury.  In addition, the note was void under General Obligations Law 5-511 because the interest rate exceeded 16%. Fred Schutzman Co. v Park Slope Advanced Med., PLLC, 2015 NY Slip Op 04447, 2nd Dept 5-27-15

 

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Question of Fact Whether Plaintiff Was Fraudulently Induced to Sign a Release—Relevant Law Explained

The Second Department determined plaintiff raised a triable issue of fact concerning whether plaintiff was fraudulently induced to sign a release re: a potential personal-injury action. The release was signed three days after the accident when the plaintiff was still on pain medication and it was alleged the insurance adjuster told her the offered funds were for plaintiff’s “inconvenience” and not to compensate for her injuries.  The court explained relevant law:

” A release is a contract, and its construction is governed by contract law'” … . “Generally, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress'” … .

“A signed release shifts the burden of going forward . . . to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release'” … . “A plaintiff seeking to invalidate a release due to fraudulent inducement must establish the basic elements of fraud, namely a representation of a material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury'” … . Moreover, there is a requirement that a release covering both known and unknown injuries be ” fairly and knowingly made'” … . Powell v Adler, 2015 NY Slip Op 04466, 2nd Dept 5-27-15

 

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“Preamble” Read to Defendant Before the Miranda Warnings Neutralized the Effect of the Warnings—Defendant’s Statement Should Have Been Suppressed

The Second Department determined defendant’s suppression motion should have been granted because the “preamble” read to him before he waived his right to remain silent neutralized the effect of the Miranda warnings. “Before the defendant was read his Miranda rights, the detective investigator said to him (1) “if you agree to speak with us, you may, if you wish, explain what you did and what occurred at that date, time, and place,” (2) “[i]f . . . you have an alibi . . . and you want to tell us where you were, we will ask that you please give us as much information as you can, including the names of any people you were with,” and (3) “[i]f you agree to speak to us and your version of the events of that day differs from what we have heard, you may, if you so choose, tell us your story.” Thus, a clear implication was conveyed to the defendant that he ought to speak to the detective investigator and the assistant district attorney present at the interview in order to set forth his version of events so that they could be investigated. As such, the preamble here … rendered the subsequent Miranda warnings inadequate and ineffective in advising the defendant of his rights …”. People v Rivera, 2015 NY Slip Op 04517, 2nd Dept 5-27-15

 

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