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THE COURT MAY ORDER A PARENT TO SUBMIT TO COUNSELING OR TREATMENT AS PART OF A CUSTODY OR PARENTAL ACCESS ORDER; BUT THE COURT MAY NOT IMPOSE SUCH CONDITIONS ON SEEKING PARENTAL ACCESS IN THE FUTURE (SECOND DEPT). ​

The Second Department noted that a court may order a parent to submit to counseling or treatment as part of a custody or parental access order, but the court cannot not impose those same conditions upon seeking parental access in the future:

“A court deciding a custody proceeding may ‘direct a party to submit to counseling or treatment as a component of a [parental access] or custody order'” … . Here, the Family Court properly directed the father to submit to hair follicle, drug, and alcohol testing as a component of his parental access … . However, the court should not have made the father’s submission to such testing a condition to seeking future parental access … . Matter of Buskey v Alexis, 2024 NY Slip Op 01917, Second Dept 4-10-24

Practice Point: A court may impose treatment or counseling conditions in a parental access order, but cannot so condition the seeking of future parental access.

 

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PLAINTIFF’S EXPERT DID NOT ESTABLISH EITHER THE “GENERAL CAUSATION” OR “SPECIFIC CAUSATION” FRYE CRITERIA IN THIS MOLD-INJURY CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s expert did not offer sufficient proof plaintiff’s injuries were caused by exposure to mold. Neither the “general causation” nor “specific causation” criteria established by Frye v United States, 293 F 101, were met:

General causation cannot be established through studies showing only a “risk” or “association” between mold exposure and the development of certain medical conditions … . The defendants’ expert relied on a position paper of the American Academy of Allergy, Asthma and Immunology published in 2006 … , that controverts the plaintiff’s expert’s theory of causation … . The scientific literature and testimony proffered by the plaintiff’s expert was insufficient to demonstrate that the plaintiff’s expert’s theory of general causation has gained general acceptance in the scientific community … . …

… [T]he method used by [plaintiff’s] expert to establish specific causation did not satisfy Frye. … [I]t is not enough for a plaintiff’s expert to testify that “exposure to a toxin is ‘excessive’ or ‘far more’ than others,” or to offer testimony “that merely links a toxin to a disease or ‘work[s] backwards from reported symptoms to divine an otherwise unknown concentration’ of a toxin” … . “… [W]e have never dispensed with a plaintiff’s burden to establish sufficient exposure to a substance to cause the claimed adverse health effect” … . “At a minimum, . . . there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . Buist v Bromley Co., LLC, 2024 NY Slip Op 01904, Second Dept 4–10-24

Practice Point: Here the expert evidence purporting to demonstrate plaintiff’s injuries were caused by exposure to mold did not satisfy the “general causation” or “specific causation” criteria established by Frye v United States, 293 F 101, criteria explained.

 

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BECAUSE FAMILY COURT HAD EXCLUSIVE AND CONTINUING JURISDICTION OVER THIS CUSTODY CASE, MOTHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN SUMMARILY DISMISSED BECAUSE FATHER AND CHILD RESIDE OUT-OF-STATE (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify custody should not have summarily dismissed because father and child were living out-of-state. Because New York has exclusive and continuing jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the court should have allowed mother to present evidence on any connections to New York:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at article 5-A of the Domestic Relations Law, a court of this state which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish that jurisdiction because “neither the child” nor “the child and one parent” have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” … .

… [T]he initial custody determination was rendered in New York. … Family Court should not have summarily dismissed the mother’s petitions on the ground that the child was living with the father out of state, without considering whether the court had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1), and affording the mother an opportunity to present evidence as to that issue … . Matter of Brandon v Brady, 2024 NY Slip Op 01916, Second Dept 4-10-24

Practice Point: Where New York has exclusive and continuing jurisdiction over a custody matter pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, it is error to summarily dismiss a custody petition on the ground the child lives out-of-state. It must be determined whether there exist sufficient connections with New York to warrant hearing the case in New York.

 

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THE ELECTRICAL-CONTRACTOR CORP WAS NOT LICENSED TO DO ELECTRICAL WORK IN NYC; THE FACT THAT THE CORPORATION’S VICE PRESIDENT WAS LICENSED AND THE VICE PRESIDENT’S COMPANY, WHICH DID THE ELECTRICAL WORK AS A SUBCONTRACTOR, WAS LICENSED DOESN’T MATTER; THE CORPORATION CAN NOT SUE FOR BREACH OF CONTRACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff electrical-contractor corporation could not sue for breach of contract because the corporation was not licensed in NYC to do electrical work, even though plaintiff’s vice president was licensed and the vice president’s company (QNCC) which did the work as plaintiff corporation’s subcontractor was licensed:

Administrative Code § 27-3017(a) states that it shall be unlawful for any person to, inter alia, perform electrical work in the City of New York unless that person is a licensed master electrician or special electrician. Licensing statutes are to be strictly construed … . …

The plaintiff’s contention that recovery should not be denied because QNCC was a duly licensed subcontractor which performed the electrical work is without merit. This Court has previously held that such a relationship is insufficient to permit an unlicensed contractor to recover for work performed in the City … . “‘So strict has been judicial construction of the statutory requirement through concern for the public health and welfare that the requirement may not be satisfied by employing or subletting’ the work to an appropriately licensed person” … . Moreover, that the plaintiff’s vice president had a master electrician’s license, and that the defendant’s architect knew that the electrical work permits were issued to an entity other than the plaintiff, does not bar the application of the above rule … . Electrical Contr. Solutions Corp. v Trump Vil. Section 4, Inc., 2024 NY Slip Op 01907, Second Dept 4-10-24

Practice Point: The NYC Administrative Code requirement that electrical work must be done by licensed entities or persons is strictly construed. Here the electrical-contractor corporation’s vice president was licensed and the vice president’s company which did the work as a subcontractor was licensed, but the corporation was not. The corporation could not sue for breach of contract.

 

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HERE PLAINTIFF CORPORATION, RC, DID NOT EXIST WHEN THE REAL ESTATE CONTRACT WAS ENTERED AND WAS NOT FORMED FOR SEVERAL YEARS UNTIL JUST BEFORE THE INSTANT LITIGATION; BECAUSE DEFENDANT DEALT WITH RC AS A CORPORATION FOR YEARS AND RECEIVED SOME BENEFIT FROM THE CONTRACT, THE DOCTRINE OF “CORPORATION BY ESTOPPEL” PROHIBITED DEFENDANT FROM AVOIDING ITS OBLIGATIONS UNDER THE CONTRACT BY ARGUING A NONEXISTENT CORPORATION CANNOT ENTER A CONTRACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the “corporation by estoppel” doctrine prevented defendant from arguing the real estate purchase agreement was invalid because the corporate plaintiff (RC) did not exist at the time the contract was executed. RC was eventually formed years later just before this action commenced. The defendant had dealt with RC as an incorporated entity for several years. Therefore defendant was estopped from denying RC’s validity to avoid their obligations under the contract:

Generally, it is true that “‘[s]ince a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract'” … . However, under the doctrine of corporation by estoppel, “one who has recognized [an] organization as a corporation in business dealings should not be allowed to quibble or raise immaterial issues which do not concern him or her in the slightest degree or affect his or her substantial rights” …. Thus, “parties who deal with an entity holding itself out as a corporation and who receive performance from such entity are estopped from avoiding their obligations to it” … . Teva Realty, LLC v Cornaga Holding Corp., 2024 NY Slip Op 01833, Second Dept 4-3-24

Practice Point: Here plaintiff corporation did not exist when the real estate contract was entered but was formed years later just before the instant litigation was commenced. Defendant dealt with plaintiff as a corporation for years and received a benefit from the contract. The doctrine of “corporation by estoppel” prohibited defendant from arguing the contract was not valid because the corporation was not formed at the time the contract was entered.

 

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A MANAGING AGENT IS NOT LIABLE FOR INJURY CAUSED BY A DANGEROUS CONDITION ON THE MANAGED PROPERTY UNLESS THE MANAGING AGENT EXERCISES COMPLETE AND EXCLUSIVE CONTROL OVER THE OPERATION OF THE PROPERTY (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the property managing agent did not exercise complete and exclusive control of the operation of the property and therefore could not be held liable for plaintiff’s trip and fall over a stub-up pipe protruding from a step:

Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against CBRE [the managing agent] on the ground that CBRE does not own, operate, or control the premises. “Where, as here, a managing agent is accused of nonfeasance which causes injury to a third party, it is subject to liability only where it has complete and exclusive control of the management and operation of the property in question” … . “A managing agent is not in complete and exclusive control of the premises where the owner has reserved to itself a certain amount of control in the written agreement” … .

Here, CBRE established, prima facie, that it was a managing agent of the premises and that the management agreement was not so comprehensive and exclusive as to displace the duty of the owner of the premises to maintain the premises safely … . Quezada v CBRE, Inc., 2024 NY Slip Op 01829, Second Dept 4-3-24

Practice Point: A managing agent is not liable for injury caused by a dangerous condition on the managed property unless the agent exercises complete and exclusive control over the operation of the property.

 

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ALTHOUGH THERE WAS ADMISSIBLE EVIDENCE OF DOMESTIC VIOLENCE BY FATHER, THERE WAS NO ADMISSIBLE EVIDENCE THE CHILD WAS PRESENT; NEGLECT FINDING REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the admissible evidence did not support the finding that father neglected the child based on an act of domestic violence. Mother’s 911 call constituted admissible evidence of the domestic violence. But, although evidence the child was present apparently existed, it was never admitted in evidence:

A recording of a 911 call made by the mother, which was admitted into evidence without objection, was the only admissible evidence offered in support of the petition. During this call, the mother told the 911 operator that the father was harassing her and threatening her, that there were weapons in the house, including knives and guns, and that she was in fear for her life. However, no evidence was admitted in support of ACS’s [Administration of Children’s Services’] position that the children observed, were aware of, or were in close proximity to the domestic violence, and that their physical, mental, or emotional condition was impaired or was in danger of becoming impaired … . While ACS contends that the redacted ACS progress notes were admitted into evidence, and contain the children’s out-of court-statements demonstrating the children were aware of and heard the domestic violence, the progress notes, although marked for identification at the virtual hybrid hearing, were never entered into evidence, and therefore, cannot be considered. Thus, ACS failed to establish that the children’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the father’s acts of violence toward the mother … . Matter of Easton J. (Courtney J.), 2024 NY Slip Op 01810, Second Dept 4-3-24

Practice Point: To find neglect based on an act of domestic violence by father against mother there must be admissible evidence the child was present.

 

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THE TURNOVER PETITION SEEKING REAL PROPERTY AND FUNDS TRANSFERRED TO DEFRAUD JUDGMENT CREDITORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the turnover petition seeking real property and funds transferred by judgment debtors to defraud judgment creditors should have been granted:

CPLR 5225(b) “‘provides for an expedited special proceeding by a judgment creditor to recover money or other personal property belonging to a judgment debtor against a person in possession or custody of money or other personal property in which the judgment debtor has an interest in order to satisfy a judgment'” … . A proceeding pursuant to CPLR 5225(b) “may also be maintained ‘against a person who is a transferee of money or other personal property from the judgment debtor'” …

Pursuant to CPLR 5227, “a special proceeding may be commenced by a judgment creditor ‘against any person who it is shown is or will become indebted to the judgment debtor'” … . In a proceeding pursuant to CPLR 5227, the “judgment creditor stands in the judgment debtor’s shoes, and may enforce the obligations owed to the judgment debtor by the indemnifying party” … .

… [T]he judgment creditors offered sufficient evidence to establish that [respondent] Nancy Barrick transferred the Barrick estate to the Barrick Trust with actual intent to hinder, delay, and defraud present or future creditors pursuant to Debtor and Creditor Law former § 276 … …. Nancy Barrick transferred title to the Barrick estate without adequate consideration to a trust for which she and her brother served as the trustees while retaining control over and possession of the property.

… [T]he judgment creditors also offered sufficient evidence to establish that the conveyances from the RMP judgment debtors to the RMP transferees were made with actual intent to defraud present and future creditors pursuant to Debtor and Creditor Law former § 276. … [T]he transfers were made without adequate consideration and evinced a distinct course of conduct after incurring large debts to the judgment creditors to render the RMP judgment debtors insolvent … . Matter of Argyle Funds SPC, Inc. v Barrick, 2024 NY Slip Op 01806, Second Dept 4-3-24

Practice Point: The CPLR provides a mechanism called a turnover petition which allows a judgment creditor to obtain property fraudulently transferred by the judgment debtor.

 

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ALTHOUGH DEFENDANT RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S CONTRIBUTORY NEGLIGENCE IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT RAISE A QUESTION OF FACT ABOUT HIS OWN LIABILTY; THE JUDGE SHOULD NOT HAVE DEEMED PLAINTIFF’S SUMMARY JUDGMENT MOTION PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined that although defendant raised a question of fact about whether plaintiff was contributorily negligent, defendant did not raise a question of fact about the defendant-driver’s liability. In addition, plaintiff’s motion for summary judgment should not have been deemed premature:

… [T]he defendants submitted an affidavit from the defendant driver, in which he stated that he was “not fully responsible” for the accident. The defendant driver also averred that the traffic light had turned green and that the plaintiff had moved forward and then suddenly stopped, causing the defendant driver to strike the rear of the plaintiff’s vehicle despite his efforts to stop his vehicle. This evidence raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident, thereby supporting the denial of that branch of her motion which was for summary judgment dismissing the affirmative defenses alleging comparative negligence … . However, since the defendants’ evidence related only to the plaintiff’s comparative fault, the defendants failed to raise a triable issue of fact in opposition to that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging negligent operation of a motor vehicle … .

Furthermore, the Supreme Court erred in determining that the plaintiff’s motion was premature. “[W]hile a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, [a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … . Here, the defendants had personal knowledge of the relevant facts, and their mere hope or speculation that evidence might be uncovered during discovery was an insufficient basis for denying the plaintiff’s motion …. Martin v Copado-Esquivel, 2024 NY Slip Op 01804, Second Dept 4-3-24

Practice Point: In a rear-end collision case, the fact that defendant raises a question of fact about plaintiff’s contributory negligence does not preclude granting plaintiff summary judgment on the issue of defendant’s liability.

Practice Point: Here, where the facts of the rear-end collision were within defendant’s personal knowledge, plaintiff’s motion for summary judgment should not have been dismissed as premature.

 

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THE BANK IN THIS FORECLOSURE ACTION FAILED TO PROVIDE THE ORIGINAL LOAN DOCUMENT AND THE LOST NOTE AFFIDAVIT WAS INSUFFICIENT; THE MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN DENIED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for a default judgment in this foreclosure action should not have been granted because the original loan document was not provided and the lost note affidavit was insufficient:

A plaintiff moving for leave to enter a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant’s failure to answer or appear … . Pursuant to UCC 3-804, “[t]he owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his [or her] own name and recover from any party liable thereon upon due proof of his [or her] ownership, the facts which prevent his [or her] production of the instrument and its terms.” Here, the plaintiff failed to set forth the facts that prevented the production of the original home equity line of credit agreement … . The lost note affidavit submitted by the plaintiff in support of its motion, inter alia, for leave to enter a default judgment against the defendants failed to state when the search for the credit agreement occurred, did not identify who conducted the search for the credit agreement, or explain when or how the credit agreement was lost … . JPMorgan Chase Bank, N.A. v Morton, 2024 NY Slip Op 01802, Second Dept 4-3-24

Practice Point: Here in this foreclosure action, in moving for a default judgment the bank did not provide the original loan document and did not provide a sufficient lost note affidavit. The motion should have been denied, criteria explained.

 

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