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Defendant-Attorney Can Seek Contribution from Succeeding Attorney Who Contributed to Plaintiff’s Damages

The Second Department noted that a claim for contribution can be made by an attorney-defendant against a succeeding attorney who may have contributed to plaintiff’s damages.  The court also explained the nature of common law indemnification in this context:

“In determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff’s damages” … . “[T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors” … . A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney’s negligence may have contributed to or aggravated the plaintiff’s injuries … . * * *

“[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor'” … . ” Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'” … . Rehberger v Garguilo & Orzechowski LLP, 2014 NY Slip Op 04181, 2nd Dept 6-11-14

 

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Application to File Late Notice of Claim Against School District Properly Denied—School District Did Not Have Timely Actual Notice and Plaintiff Had No Reasonable Excuse

The Second Department determined the application to file a late notice of claim on behalf of an infant plaintiff was properly denied where the school district did not have timely actual notice of the claim and there was no reasonable excuse for the delay.  Iglesias v Brentwood Union Free School Dist, 2014 NY Slip Op 04194, 2nd Dept 6-11-14

 

Lease Provision Allowing Landlord to Comingle Security Deposit with Landlord’s Funds Was Void—Question of Fact Whether Both Parties’ Actions Resulted in Termination of the Lease by Operation of Law

The Second Department determined defendants-tenants were entitled to the return of their security deposit because the lease purported to allow the landlord to comingle the security deposit with the landlord’s funds.  The court further determined the landlord was not entitled to summary judgment for breach of the lease because the landlord accepted the keys to the property when the tenants left before the end of the lease, put the house on the market, and did not demand additional rent for over two months:

General Obligations Law § 7-103(1) provides that a security deposit with respect to the use or rental of real property “shall continue to be the money of the person making such deposit . . . and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same.” General Obligations Law § 7-103(3) provides that any provision of a lease “whereby a person who so deposits or advances money waives any provision of this section is absolutely void.” When a landlord commingles the security deposit with his or her personal funds in violation of General Obligations Law § 7-103(1), the tenant has “an immediate right to the return of the funds, even if the [tenant] had breached the lease” … . Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law on their counterclaim by submitting the subject lease, which contained a provision stating that the security deposit may be commingled with the plaintiffs’ general funds. This provision is void by operation of General Obligation Law § 7-103(3), and, in addition, raises an inference that the plaintiffs violated General Obligations Law § 7-103(1) by commingling the security deposit with their own funds …. In opposition, the plaintiffs, who did not submit any evidence that they did not commingle the security deposit with their own funds, failed to raise a triable issue of fact.

The Supreme Court also properly denied the plaintiffs’ cross motion for summary judgment on the first cause of action, which was to recover damages for breach of the lease. The plaintiffs made a prima facie showing that the defendants breached the lease by failing to make monthly rent payments beginning on October 1, 2011. In opposition to that showing, the defendants submitted evidence that, after they vacated the house on or about September 4, 2011, the plaintiffs accepted a return of the keys to the house, immediately put the house on the market for sale, and did not demand payment of rent until late November, 2011. Accordingly, the defendants raised a triable issue of fact as to whether the parties both acted so inconsistently with the landlord-tenant relationship that a surrender of the premises was effected by operation of law, thereby terminating the lease prior to the rent becoming due on October 1, 2011… . Soloman v Ness, 2014 NY Slip Op 04185, 2nd Dept 6-11-14

 

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Application to File Late Notice of Claim Against School District Properly Granted in Absence of Reasonable Excuse—School District Had Timely Actual Notice and Could Not Demonstrate Prejudice

The Second Department determined Supreme Court properly granted the application to file a late notice of claim against a school district, in the absence of a reasonable excuse for the lateness:

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, the court must consider whether (1) the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition, and (3) the delay would substantially prejudice the public corporation in its defense on the merits … .

Here, the City School District of the City of Long Beach (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. … Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice … . The District’s conclusory assertions of prejudice, based solely on the petitioner’s six-week delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … .

While the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the further delay in commencing this proceeding … , the absence of a reasonable excuse is not fatal to a petition where, as here, there was actual notice and an absence of prejudice … . Matter of Fennell v City School Dist of city of Long Beach, 2014 NY Slip Op 04192, 2nd Dept 6-11-14

 

Petition for the Opportunity to Ballot Not Demonstrated to Have Been Permeated by Fraud

The Second Department determined that a petition for the opportunity to ballot was not so permeated with fraud to justify granting a petition to invalidate it:

As a general rule, a petition for an opportunity to ballot will be invalidated on the ground of fraud only if there is a showing that the entire petition is permeated with fraud … or, if not permeated with fraud, where a potential candidate who stands to benefit from the validation of the petition for an opportunity to ballot has participated in or is chargeable with knowledge of the fraud … .

Here, the petitioners did not sustain their burden of establishing by clear and convincing evidence that the totality of the instances of forged signatures on the subject petition for an opportunity to ballot rose to the level at which it could be said that the petition was permeated with fraud … . Matter of Steinert v Daly, 2014 NY Slip Op 04206, 2nd Dept 6-11-14

 

Priority in Custody Disputes Given to Party Initially Awarded Custody

The Second Department, in affirming Family Court’s denial of a motion to modify a stipulated custody arrangement, noted that priority is given to the parent who was initially awarded custody:

“A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child’s best interests” … . The best interests of the child are determined by a review of the totality of the circumstances … . In this regard, the court should consider whether the alleged changed circumstances indicate that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement … .

” Priority in custody disputes should usually be given to the parent who was first awarded custody . . . because this policy assures stability in the child’s life'” … . “Thus, [w]hen . . . there is no indication that a change of custody will result in significantly enhancing the child’s welfare, it is generally considered in the child’s best interests not to disrupt his [or her] life'” … . McCance v De Witt, 2014 NY Slip Op 04175, 2nd Dept 6-11-14

 

Suspended Judgment Should Not Have Been Granted in Termination-of-Parental-Rights Proceeding

The Second Department, over a partial dissent, determined Family Court should not have granted a suspended judgment in a proceeding for the termination of parental rights:

After a dispositional hearing on a petition to terminate parental rights, a court may dismiss the petition, terminate parental rights and commit guardianship to the agency, or suspend judgment for a period of up to one year (see Family Ct Act §§ 631, 633[b]). “A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords a brief grace period designed to prepare the parent to be reunited with the child'” … . Although this disposition provides a parent with a “second chance,” it is appropriate only where it is also in the best interests of the children … . A suspended judgment is not appropriate where a parent has failed to gain insight into the problems which led to the children’s removal in the first instance … . Moreover, to warrant a suspended judgment, “a parent must demonstrate that progress has been made to overcome the specific problems that led to the removal of the children. Mere attempts are not sufficient” … . Matter of Chanel C, 2014 NY Slip Op 04226, 2nd Dept 6-11-14

 

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Tax Assessment Reductions Can Be Sought Solely through a Tax Certiorari Proceeding Under the Real Property Tax Law, Not Through an Article 78 Proceeding

The Second Department determined the procedure under the Real Property Tax Law (RPTL) was the only avenue available to petitioner to seek a reduction of tax assessments.  Petitioner had successfully challenged the tax assessments for the 2006/2007 tax year and then sought a reduction for the following year in an Article 78 proceeding.  The Second Department determined petitioner should have sought reductions for all the relevant tax years within the time limits of RPTL 702(2) and could not use an Article 78 proceeding to collaterally attack the assessment:

“Ordinarily, the proper method for challenging excessive or unlawful real property tax assessments is by the commencement of a tax certiorari proceeding pursuant to article 7 of the Real Property Tax Law” … . Such a proceeding is properly commenced after exhaustion of the administrative grievance remedies, and within 30 days after the filing of the final assessment roll (see RPTL 702[2]…). An “excessive assessment” subject to review pursuant to RPTL article 7 includes an assessment of a special assessing unit that fails to comply with the limitations on increases in assessed value set forth in RPTL 1805 (see RPTL 701[4][d]; 706[1]…).

Collateral attacks on assessments are proper where the jurisdiction of the taxing authority is challenged, the tax itself is claimed to be unconstitutional …, or the challenge is to “the method employed in the assessment of several properties rather than the overvaluation or undervaluation of specific properties” … . None of these exceptions to the exclusive applicability of RPTL article 7 are present here, since the petitioner challenged, as excessive, the assessments of specific parcels of property by virtue of the appellants’ failure to comply with RPTL 1805 (see RPTL 701[4][d]).

The petitioner contends that, nonetheless, the commencement of a CPLR article 78 proceeding within the time provided for by CPLR 217 is the proper vehicle by which to compel the requested transition assessments because recalculation of the 2007/2008 assessments only became necessary after the assessments for the previous tax year were reduced by the Supreme Court and that reduction was affirmed pursuant to our decision and order in Matter of Rainbow Diner v Board of Assessors (71 AD3d 901). We reject this contention, since the petitioner was required to timely exhaust administrative remedies applicable to tax certiorari proceedings, and its challenge was subject to the limitations period of RPTL 702(2). Matter of Jonsher Realty Corp/Melba Inc v Board of Assessors, 2014 NY Slip Op 04195, 2nd Dept 6-11-14

 

Mother’s Request to Relocate Properly Granted

The Second Department determined mother had made a sufficient showing to justify relocating with her child to Michigan, where she could afford an apartment based upon her disability payments alone.  The court explained the operative analytic principles:

“When reviewing a custodial parent’s request to relocate, the court’s primary focus must be on the best interests of the child” … . “Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child’s best interests” … . “Although each custodial parent’s request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the [child] and each parent, the impact of the move on the quantity and quality of the [child’s] future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the [child] may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the [child] through suitable visitation arrangements” … . In relocation determinations, this Court’s authority is as broad as that of the hearing court … . Thus, a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record … . Ortiz v Ortiz, 2014 NY Slip Op 04202, 2nd Dept 6-11-14

 

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Mother’s Failure to Seek Immediate Medical Assistance for Child Fatally Injured by Her Boyfriend Supported a Severe Abuse Finding and a Derivative Severe Abuse Finding—Amendment to Family Court Act 1051 (e), Removing the “Diligent Efforts” Requirement, Imposed Retroactively to Support Severe Abuse Finding

The Second Department determined an amendment to Family Court Act 1051 (e) could be applied retroactively to support a finding of severe abuse against mother in an article 10 proceeding.  Although the injuries to the child (Anniyah) were inflicted by the mother’s boyfriend, the mother failed to seek immediate medical care and the child died.  The instant proceedings were derivative abuse proceedings involving a sibling (Amira L):

A parent who stands by while others inflict harm may be found responsible for that harm (see Family Ct Act § 1012[e][ii]). And, derivative findings of abuse may be “predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well” … . Accordingly, “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” (Family Ct Act § 1046[a][i]… ). Thus, in this proceeding regarding the subject child, Amirah L., proof of the mother’s acts and omissions that ultimately resulted in Anniyah’s death were admissible. * * *

When the fact-finding hearing was held in this case, the Family Court Act did not permit a finding of severe abuse solely on the element of the mother’s conduct (see Social Services Law § 384-b[8][a][i]), but also required a finding as to ACS’s “diligent efforts” or excuse from exercising “diligent efforts” (see Social Services Law § 384-b[8][a][iv]). During the pendency of this appeal, however, the Legislature amended Family Court Act § 1051(e), so that a “diligent efforts” finding is no longer a required element of a finding of severe abuse in the context of a Family Court Act article 10 proceeding (see L 2013, ch 430, § 1; cf. Social Services Law § 384-b[8]). The statutory amendment may be applied retroactively in this case in light of the nature and purpose of the amendment, the Legislature’s expression of urgency in its application, and the absence of any due process violation to the mother in retroactive application …

Accordingly, upon our finding that clear and convincing evidence at the fact-finding hearing established that the mother acted recklessly, under circumstances evincing a depraved indifference to Anniyah’s life, and thereby caused Anniyah’s death, we find that the mother severely abused Anniyah and derivatively severely abused the subject child, Amirah L. Matter of Amirah L, 2014 NY Slip Op 04198, 2nd Dept 6-11-14

 

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