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A SELLER WHO BREACHES OR SABOTAGES A REAL ESTATE PURCHASE AGREEMENT CANNOT RELY ON REMEDY LIMITATION CLAUSES TO PRECLUDE A BUYER’S ACTION FOR SPECIFIC PERFORMANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that remedy limitation clauses in contracts will not be enforced on behalf of a party who breaches the contract,, acts in bad faith or deliberately sabotages the contract. Here the defendant argued the remedy limitation clause precluded plaintiff’s action for specific performance. But the complaint alleged defendant failed to appear at the closing and otherwise acted prevented the sale bad faith:

“Where . . . a seller sabotages efforts to close the deal, remedy limitation clauses in the contract of sale do not bar a buyer from obtaining specific performance” … . Further, “[a] vendor of real property who breaches the contract of sale in bad faith cannot limit the damages recoverable by the injured purchaser by relying on a contractual limitation” … . Saadia v National Socy. of Hebrew Day Schs., Inc., 2024 NY Slip Op 01571, Second Dept 3-20-24

Practice Point: In a real estate deal, a seller who deliberately sabotages the contract cannot rely on remedy limitation clauses to preclude a buyer’s action for specific performance.

 

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​THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) RELIED SOLELY ON PRIOR NEGLECT FINDINGS FROM 2007 AND 2009 TO PROVE DERIVATIVE NEGLECT; NEGLECT FINDING REVERSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Administration for Children’s Services (ACS) did not demonstrate mother had derivatively neglected the child. ACS had brought a motion for summary judgment which the court granted. The Second Department noted that motions for summary judgment pursuant to CPLR 3212 can be appropriate in a Family Court proceeding:

While proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of the parent (see Family Ct Act § 1046[b]), “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry . . . is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” … . In determining whether a child born after the underlying acts of abuse or neglect should be adjudicated derivatively neglected, the “determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … .

Here, ACS failed to establish, prima facie, that the mother derivatively neglected the children based upon her alleged failure to address certain mental health issues underlying the 2007 and 2009 findings of neglect … . In support of its motion, ACS relied solely on the prior neglect findings and failed to include an affidavit from anyone with personal knowledge of the events alleged in the neglect petitions or any other evidentiary material (see CPLR 3212[b]). The prior neglect findings were not so proximate in time to establish, as a matter of law, that the conditions that formed the basis therefor continued to exist … . Matter of Kiarah V.R. (Virginia V.), 2024 NY Slip Op 01552, Second Dept 3-20-24

Practice Point: Here reliance on 2007 and 2009 neglect findings to demonstrate derivative neglect was deemed insufficient.

Practice Point: The court noted that summary judgment motions pursuant to CPLR 3212 can be brought in Family Court.

 

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CPLR ARTICLE 63-A IS CONSTITUTIONAL; THE STATUTE ALLOWS ISSUANCE OF AN EXTREME RISK ORDER PROHIBITING A RESPONDENT FROM POSSESSING A FIREARM BASED UPON EVIDENCE RESPONDENT IS LIKELY TO CAUSE SERIOUS HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Barros, determined the statute which allows the issuance of an extreme risk order prohibiting a person from possessing a firearm is constitutional. The statute is CPLR article 63-A:

CPLR 6342(1) provides, in pertinent part, that upon an application for an extreme risk protection order: “the court may issue a temporary extreme risk protection order, ex parte or otherwise, to prohibit the respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun, upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law. Such application for a temporary order shall be determined in writing on the same day the application is filed.”

In determining whether there are grounds for a temporary extreme risk protection order, the court “shall consider any relevant factors,” including a nonexhaustive list of conduct by the respondent: “(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person; “(b) a violation or alleged violation of an order of protection; “(c) any pending charge or conviction for an offense involving the use of a weapon; “(d) the reckless use, display or brandishing of a firearm, rifle or shotgun; “(e) any history of a violation of an extreme risk protection order; “(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or “(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor. Matter of R.M. v C.M., 2024 NY Slip Op 01545, Second Dept 3-20-24

Practice Point: Overruling lower court precedent to the contrary, the Second Department held CPLR article 62-A, which allows issuance of an order prohibiting a respondent from possessing a firearm based upon an extreme risk of serious harm to the respondent or others is constitutional.

 

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ALTHOUGH THE COURT HAD, IN 2018, GRANTED MOTHER’S APPLICATION TO RELOCATE WITH THE CHILD TO CONNECTICUT, THE COURT SHOULD NOT HAVE DECIDED IT DID NOT HAVE JURISDICTION TO DETERMINE FATHER’S PETITION TO MODIFY THE CUSTODY ORDER WITHOUT HOLDING A HEARING ABOUT THE CHILD’S CONNECTIONS TO NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have determined New York courts no longer had jurisdiction over this modification of custody case without holding a hearing:

In November 2018, the Supreme Court granted the mother’s application to relocate with the child from New York to Connecticut. In an order dated May 31, 2022, the court awarded sole custody of the child to the mother and suspended the father’s parental access upon the father’s default in appearing at a scheduled court appearance. The father subsequently filed a petition to modify the order dated May 31, 2022, so as to award him sole physical custody of the child. At a court appearance on December 5, 2022, the court stated, inter alia, that the mother had “relocated to Connecticut years ago” and that “[t]he [c]ourt no longer has jurisdiction.” …

The Supreme Court should not have summarily determined, without a hearing, that it lacked jurisdiction on the ground that the child had been residing in Connecticut. The court made previous custody determinations in relation to the child in conformity with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act and, therefore, would ordinarily retain exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a … . In order to determine whether it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1)(a), the court should have afforded the parties an opportunity to present evidence as to whether the child had maintained a significant connection with New York and whether substantial evidence was available in New York concerning the child’s “care, protection, training, and personal relationships” … . Matter of Holley v Mills, 2024 NY Slip Op 01542, Second Dept 3-20-24

Practice Point: Although the court in 2018 granted mother’s application to relocate to Connecticut with the child, it may have continuing jurisdiction. Therefore the court should not have decided it did not have jurisdiction over father’s petition to modify the custody order without holding a hearing about the child’s connections to New York.

Similar jurisdiction issue in a child support modification proceeding (governed by Family Court Act 580-205(a)) in Matter of Sherman v Killian, 2024 NY Slip Op 01550, Second Dept 3-20-24

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AFTER RESPONDENT-STUDENT THREATENED TO “SHOOT… UP THE SCHOOL,” PETITIONER-POLICE-DEPARTMENT FILED A PETITION FOR AN EXTREME RISK PROTECTION ORDER PURSUANT TO CPLR ARTICLE 63-A WHICH SUPREME COURT DENIED ON THE GROUND THE STATUTE VIOLATES THE SECOND AMENDMENT; THE APPELLATE DIVISION REVERSED FINDING THE STATUTE CONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that petitioner-police-department’s petition for an extreme risk protection order re: a 16-year-old student who had threatened to “shoot up the school” should not have been dismissed on the ground that the controlling statute, CPLR article 63-A, is unconstitutional:

… [T]he respondent, born in 2009, told other students on his school bus that “they shouldn’t come to school tomorrow” after they criticized the cleanliness of his hands. After the words “gun” and “shooting up the school” were mentioned, the respondent said that he was joking, but later said that he “may be serious” in carrying out his threat. School officials reported previous incidents involving violence by the respondent against other students, suicidal ideation and behavior by the respondent, and evidence that the respondent may have a mental illness.

The petitioner [police department] filed a petition for an extreme risk protection order pursuant to CPLR article 63-A. The Supreme Court dismissed the petition [on the ground that] CPLR article 63-A is unconstitutional. …

The respondent is a minor less than 16 years old, who … is not allowed to possess guns …, … [T]he Supreme Court of the United States stated that the Second Amendment of the United States Constitution protects “law-abiding, adult citizens.” The respondent in this case is not an adult and has no general right to keep and bear arms. Therefore, he lacks standing to challenge CPLR article 63-A as a violation of the Second Amendment … .

Further, … CPLR article 63-A is constitutional and does not deprive the respondent of due process of law. Accordingly, the petition should be determined on the merits. Matter of Gallagher Town of New Windsor Police Dept. v D.M., 2024 NY Slip Op 01539, Second Dept 3-20-24

Practice Point: Here the police department sought an extreme risk protection order re: a 16-year-old student who threatened to shoot up the school  Supreme Court dismissed the petition for the extreme risk order, finding the controlling statute, CPLR article 63-A, unconstitutional. The First Department reversed noting its opinion dated March 20, 2024, Matter of R.M. v C.M., 2024 NY Slip Op 01545, finding the statute constitutional.

 

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THE REAR-DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT; HERE THERE IS A QUESTION OF FACT WHETHER THE FRONT DRIVER STOPPED SUDDENLY FOR NO APPARENT REASON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the rear driver in this rear-end collision case was negligent. The rear-driver alleged plaintiff’s vehicle stopped for no apparent reason when no cars were in front of it:

“‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle'” (… see Vehicle and Traffic Law § 1129[a]). “‘There can be more than one proximate cause of an accident, and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident'” …. “‘[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision'” … . Laureano v EAN Holdings, LLC, 2024 NY Slip Op 01538, Second Dept 3-20-24

Practice Point: The rear driver in a rear-end collision case is not always negligent. Here there was a question of fact whether the front driver stopped suddenly for no apparent reason.

 

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A DEFECT IN THE TOP STEP OF A STAIRWAY WAS ALLEGED TO HAVE CAUSED THE TRIP AND FALL; THERE WERE QUESTIONS OF FACT WHETHER THE DEFECT WAS OPEN AND OBVIOUS AND WHETHER THE DEFECT WAS A DANGEROUS CONDITION; THE COURT NOTED THAT AN OPEN AND OBVIOUS CONDITION MAY STILL BE DANGEROUS AND THE QUESTION IS USUALLY FOR A JURY TO DECIDE (SECOND DEPT).

The Second Department,, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway trip and fall case should not have been granted. The court noted that a condition which is open and obvious may still be dangerous. Here it was alleged a defect on the edge of the top step caused the fall:

While there is “no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … , when a dangerous condition exists on the premises, proof that the dangerous condition is open and obvious “does not preclude a finding of liability against an owner for failure to maintain property in a safe condition” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “The issue of whether a condition is open and obvious and not inherently dangerous is case-specific, and usually a question of fact for a jury” … .

Here, the defendants’ submissions, including photographs of the alleged defect, failed to eliminate all triable issues of fact as to whether the allegedly defective condition was open and obvious … . While the plaintiff testified at her deposition that she had previously used the stairway and observed the allegedly defective condition, she also testified that she did not inspect the condition each time that she had used the stairway and that she had not noticed that the condition had worsened since she last observed it. Johnson v 1451 Assoc., L.P., 2024 NY Slip Op 01537, Second Dept 3-20-24

Practice Point: An open and obvious condition can still be a dangerous condition. Whether a condition is open and obvious and whether it is inherently dangerous are usually fact-specific questions for a jury.

 

PLAINTIFF FELL THROUGH AN UNPROTECTED HOLE IN THE ATTIC FLOOR AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) and 241(6) causes of action. Plaintiff fell through an uncovered hole in the attic floor:

The plaintiffs’ evidence established that the injured plaintiff was exposed to an elevation risk within the ambit of Labor Law § 240(1) by virtue of the uncovered, unguarded opening in the attic floor … , that he was not provided with any safety devices to protect him from that hazard, and that the failure to provide him proper protection from the uncovered, unguarded opening was a proximate cause of his injuries … . * * *

… [T]he defendants violated Labor Law § 241(6) by failing to provide a substantial cover or safety railing for the opening in the floor in accordance with 12 NYCRR 23-1.7(b)(1)(i) and that this violation was a proximate cause of the accident … . Fuentes v 257 Toppings Path, LLC, 2024 NY Slip Op 01535, Second Dept 3-20-24

Practice Point: Plaintiff, who fell through an unprotected hole in the floor,, was entitled to summary judgment on the Labor Law 240(1) and 241(6) causes of action.

 

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PLAINTIFF’S DEMAND FOR MONETARY DAMAGES AND EQUITABLE RELIEF IN THIS EMPLOYMENT DISCRIMINATION CASE DID NOT WAIVE THE RIGHT TO A JURY TRIAL; PLAINTIFF COULD BE MADE WHOLE ENTIRELY BY A MONETARY AWARD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the demand for both money damages and equitable relief in this employment discrimination case did not waive plaintiff’s right to a jury trial. The plaintiff could be made whole entirely with money damages:

CPLR 4101(1) provides, in pertinent part, that “issues of fact shall be tried by a jury, unless a jury trial is waived,” in any action “in which a party demands and sets forth facts which would permit a judgment for a sum of money only.” The “deliberate joinder of claims for legal and equitable relief arising out of the same transaction” may constitute a waiver of the right to a jury trial … . However, the right to a jury trial must be determined by the facts alleged in the complaint and not by the prayer for relief … , and “[w]here a plaintiff alleges facts upon which monetary damages alone will afford full relief, inclusion of a demand for equitable relief in the complaint’s prayer for relief will not constitute a waiver of the right to a jury trial” … . A jury trial will not be waived if the equitable relief sought by the plaintiff is “incidental to [his or her] demand for money damages” … .

Here, the gravamen of the plaintiff’s action is to recover damages for employment discrimination. Therefore, the character of the action is essentially legal, and even though the prayer for relief in the complaint contains demands for equitable relief, only an award of monetary damages would afford the plaintiff a full and complete remedy … . Blackman v Metropolitan Tr. Auth., 2024 NY Slip Op 01530, Second Dept 3-20-24

Practice Point: Although a demand for equitable relief may waive the right to a jury trial, here there was no waiver because plaintiff could be made whole with a monetary award.

 

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ALTHOUGH THE REAR DRIVER IN A REAR-END COLLISION IS NOT ALWAYS NEGLIGENT, THE ALLEGATION THE FRONT DRIVER SUDDENLY STOPPED FOR A YELLOW LIGHT WAS NOT ENOUGH TO AVOID SUMMARY JUDGMENT IN FAVOR OF THE FRONT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment in this rear-end collision case. The defendant rear driver alleged plaintiff stopped for a yellow light, which did not raise a question of fact about plaintiff’s negligence:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision” … . “But ‘vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows'” … .

Here, in support of his motion, the plaintiff submitted his own affidavit that established, prima facie, that the defendant driver was negligent when he struck the rear of the plaintiff’s stopped vehicle, and that the defendant driver’s negligence was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact. The defendant driver’s explanation for striking the plaintiff’s vehicle in the rear, set forth in his affidavit in opposition to the plaintiff’s motion, that the plaintiff’s vehicle stopped abruptly at a yellow light in front of the intersection’s thick white stop line, was insufficient to raise a triable issue of fact as to the defendant driver’s negligence or whether the plaintiff’s actions contributed to the happening of the accident … . Yawagyentsang v Safeway Constr. Enters., LLC, 2024 NY Slip Op 01580, Second Dept 3-20-24

Practice Point: There are more appellate decisions of late finding questions of fact about whether the rear-driver is negligent in a rear-end collision based upon the allegation the front-driver stopped suddenly for no apparent reason. Here the rear driver alleged the front driver stopped suddenly for a yellow light. That was not enough to raise a question of fact.

 

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