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Agreement to Pay over $500,000 (Re: Prior Loans Allegedly Made Over a Period Time) Not Enforceable Because the Agreement Did Not Express Any Consideration—Past Consideration Is No Consideration Because the Detriment Did Not Induce the Promise

The Second Department determined that an agreement to pay over $500,000, allegedly constituting the amount of past loans made over a period of time, was not enforceable because the agreement did not express any consideration.  However, the cause of action for monies had and received properly survived summary judgment:

The lack of consideration for a note is a bona fide defense to payment thereof … . Generally, past consideration is no consideration and cannot support an agreement because “the detriment did not induce the promise” … . That is, “since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise” … . However, a “promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed” (General Obligations Law § 5-1105 [emphasis added]).

Here, as indicated, the agreement did not express any consideration. Thus, it is not enforceable as a promissory note or as a contract (see General Obligations Law § 5-1105; Uniform Commercial Code § 3-104[1][a]-[d]; [2][d…). Samet v Binson, 2014 NY Slip Op -7643, 2nd Dept 11-12-14

 

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“Notwithstanding Clause” in Contract Insulated Town from Liability for Bond Payments Re: a Waste Disposal Facility

The Second Department determined Supreme Court properly resolved conflicting contract provisions by reference to General Municipal Law 109-b (2) which governs installment contracts entered into by municipalities.  The contract concerned the operation of a waste disposal facility which closed before the bonds used to fund it were paid off.  The insurance company sought payment from the town’s sanitary district. The court held that the clauses in the contract which insulated the district from liability for the payments (if the funds were not appropriated) were enforecable:

Consistent with the requirements of General Municipal Law § 109-b(2)(f), which applies to installment contracts entered into by municipalities, section 24 of the lease between the District and NCIDA states that:

“Notwithstanding any other provision of this Agreement, (i) this Agreement shall be deemed executory only to the extent of the moneys budgeted and appropriated and available for the purpose of this Agreement, and no liability on account thereof shall be incurred by the District beyond the amount of such moneys, and (ii) it is understood that neither this Agreement nor any representation by any public employee or officer creates any legal or moral obligation to request, budget, appropriate or make available moneys for the purpose of this Agreement.”

Such clauses are intended to be utilized as a shield against the imprudent use of taxpayers’ dollars, and not as a sword to divorce the State, for purposes of its own convenience, from a contract fairly entered into and honestly performed … . Nevertheless, “even though a municipality may possess sufficient funds to satisfy a particular obligation, such funds cannot be deemed available’ if the expenditure thereof would be improvident” … .

Here, although in its lease with the NCIDA the District promised to seek appropriations sufficient to make the lease payments, the lease also repeatedly stated that the District’s liability for payments was conditioned upon the appropriation of funds. Indeed, the District’s promise to seek appropriations was tempered by the provision stating that it was required to do so only “subject to the provisions of Section 24 hereof.” Since “trumping language such as a notwithstanding’ provision controls over any contrary language’ in a contract,” the Supreme Court properly relied upon this section as the basis for its determination … . Frankenmuth Mut Ins v Waste Mgt of NY LLC, 2014 NY Slip Op 07624, 2nd Dept 11-12-14

 

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Proof of “Physical Injury” Legally Insufficient (Lacerated Finger)

The Second Department determined the evidence of “physical injury” suffered by Sergeant Klein , required for the offense of Assault in the Second Degree, was legally insufficient:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Sergeant Klein did not testify at trial. His medical records, which were admitted into evidence, indicated that he suffered a laceration to a finger on his right hand, with abrasions, pain, and swelling. While it is true that, to constitute physical injury, the pain caused by such a wound need not “be severe or intense to be substantial” …, it must, at a minimum, cause “more than slight or trivial pain” (id. at 447) or, to some extent, result in the impairment of the use of the finger (see Penal Law § 10.00[9]). No evidence was introduced that the injuries sustained by Sergeant Klein caused him more than trivial pain, or that the use of his finger was impaired by these injuries … . Accordingly, the defendant’s conviction of assault in the second degree under count two of the indictment must be vacated, and that count of the indictment must be dismissed. People v Perry, 2014 NY Slip Op 07689, 2nd Dept 11-12-14

 

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Questions of Fact Raised About Whether Premarital Agreement Was the Product of Overreaching

The Second Department reversed Supreme Court, finding that defendant-wife had raised a question of fact about the validity and enforceability of the premarital agreement.  The agreement purported to resolve all financial issues in the event of divorce and entitled defendant-wife only to a payment of $25,000.00 for each year of marriage.  Plaintiff-husband had assets of $10,000,000.00 and defendant-wife had assets of $170,000.00 at the time of the marriage:

An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse … . Such an agreement may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct … .

There is evidence that the defendant was not represented by independent counsel in connection with the preparation and execution of the allegedly “take-it-or-leave-it” premarital agreement that is the subject of this appeal. In addition, contrary to the plaintiff’s contention, the preprinted financial forms executed by the parties do not demonstrate that they were expecting to enter into a premarital agreement, as the forms recite that they were furnished by a commercial bank in connection with an application for a mortgage. The defendant therefore raised triable issues of fact as to whether the premarital agreement was the product of overreaching, such that it would be rendered unenforceable … . Bibeau v Sudick, 2014 NY Slip Op 07608, 2nd Dept 11-12-14

 

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Appellant’s Running From Area Where Gunshots Were Heard and a Visible Bulge Under Appellant’s Clothing Provided Police With Reasonable Suspicion to Justify Stopping Appellant

The Second Department, over a partial dissent, determined that seeing the appellant running shortly after hearing gunshots, and seeing a bulge under appellant’s clothing, provided the police with reasonable suspicion sufficient to justify stopping the appellant.  The suppression of the weapon thrown down by the appellant, therefore, was not required:

Appellate courts have held under the same or similar factual circumstances that the police have reasonable suspicion to pursue an individual observed with a bulge at the waistband while in geographic and temporal proximity of gunshots, who then flees from the police … . The Court of Appeals has recognized that reasonable suspicion, and not probable cause, is the applicable standard in assessing a police stop or detention and that, in determining whether reasonable suspicion exists, a defendant’s flight may be considered … .

Here, because the pursuit of the appellant was justified, the gun he discarded during the pursuit was not subject to suppression as a result of any unlawful police conduct … . Matter of Ya-Sin S, 2014 NY Slip Op 07672, 2nd Dept 11-12-14

 

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Work Performed by Plaintiff Was Not “Home Improvement”—No License Required

The Second Department affirmed Supreme Court’s finding that the installation of motorized window shades did not constitute “home improvement” and therefore plaintiff was not required to be licensed to perform the work.  If a license had been required by the Administrative Code of the City of New York, plaintiff would not have been able to recover under contract or quantum meruit:

“Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed both under the contract and on a quantum meruit basis” … . Here, contrary to the defendants’ contention, the Supreme Court properly determined that the plaintiff’s installation of motorized window shades in their condominium did not constitute “home improvement” work within the meaning of Administrative Code of the City of New York § 20-386(2)…). Rather, the plaintiff’s installation of motorized window shades constituted decorative work, which was not “incidental or related to” the separate home improvement renovations being performed by other contractors at the defendant’s condominium (Administrative Code of City of NY § 20-386[2]…). Schimko v Haley, 2014 NY Slip Op 07644, 2nd Dept 11-12-14

 

Delay In Seeking DNA Sample Contributed to Violation of Speedy Trial Statute—Indictment Dismissed

The Second Department dismissed the indictment because the unexcused delay in seeking a DNA sample resulted in the violation of the speedy trial statute (CPL 30.30):

The defendant moved pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. Contrary to the People’s contention, because the People failed to exercise due diligence in obtaining the DNA sample from the defendant, the 161-day period between June 5, 2009, and November 13, 2009, was not excludable on the ground that their need to obtain the DNA test results constituted excusable, exceptional circumstances (see CPL 30.30[4][g]…). Adding this period of time to the periods of delay correctly conceded by the People, the People exceeded the six-month period in which they were required to be ready for trial (see CPL 30.30[1][a]). Accordingly, the judgment must be reversed, the defendant’s motion pursuant to CPL 30.30 granted, and the indictment dismissed. People v Clarke, 2014 NY Slip Op 07680, 2nd Dept 11-12-14

 

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Plaintiff Entitled to Damages from the City—Plaintiff Had a “Special Relationship” with the City and Was Injured When a City Employee, Performing Ministerial Functions, Directed Plaintiff to Perform a Dangerous Task—“Special Relationship,” Which Gave Rise to a Duty Owed by the City to the Plaintiff, Defined

The Second Department affirmed Supreme Court’s denial of a motion by defendant-city to set aside the verdict.  The city had been held responsible for plaintiff’s injury based upon the jury’s findings that there was a “special relationship” between the city and the plaintiff and the city-employee was performing ministerial, not discretionary, acts when he directed the plaintiff’s work.  Plaintiff was injured when the city’s plumbing inspector directed plaintiff to perform a dangerous air pressure test:

The Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship: “(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition” … . Of the three ways that a duty may arise out of a special relationship, only the third is at issue on this appeal—whether the appellants took positive control of a known and dangerous safety condition. Contrary to the appellants’ contention, the jury’s determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence … . Delanoy v City of White Plains, 2914 NY Slip Op 07615, 2nd Dept 11-12-14

 

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Question of Fact Raised About Defendant’s Comparative Negligence in Striking a Bicyclist Travelling the Wrong Way on a One-Way Street

The Second Department reversed Supreme Court’s grant of summary judgment to the defendant in a bicycle-vehicle collision action.  The bicyclist was traveling the wrong way on a one-way street and the collision occurred in an intersection after defendant had stopped at a stop sign before entering the intersection.  Although the bicyclist was negligent as a matter of law, the court determined that a question of fact had been raised about defendant’s failure to see what was there to be seen (comparative negligence):

… [T]he defendant failed to make a prima facie showing that she was free from comparative fault in the happening of the accident … . When asked at her deposition when she first saw the plaintiff’s bicycle, she responded “I saw an object. As I was — I stopped. And then as I proceeded to cross the intersection, I felt something. And I saw an object.” This testimony demonstrated the existence of triable issues of fact exist regarding whether the defendant failed to see what was there to be seen through the proper use of her senses … and whether she failed to exercise reasonable care to avoid the collision with the plaintiff’s bicycle … . Accordingly, since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied her motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . Palmeri v Erricola, 2014 NY Slip Op 07637, 2nd Dept 11-12-14

 

Gifts from One Spouse to the Other Are Marital Property Subject to Equitable Distribution

The Second Department noted that gifts given by one spouse to the other are marital property subject to equitable distribution:

Gifts given by one spouse to another during a marriage are marital property and, thus, are subject to equitable distribution … . Here, the defendant testified that, during the marriage, the plaintiff gave her a diamond ring valued at $16,900. The Supreme Court erred in failing to equitably distribute the value of that item. Accordingly, the plaintiff is entitled to a credit of $8,450 … . Smithie v Smithie, 2014 NY Slip Op 07647, 2nd Dept 11-12-14

 

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