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Delay In Retaining Expert Did Not Warrant Preclusion of Expert’s Testimony

The Second Department determined Supreme Court should not have precluded plaintiff’s expert from testifying based upon the timing of the retaining of the expert and the serving of his expert information.  There was no evidence the delay was intentional or willful,  and no showing of prejudice to the opposing party:

CPLR 3101(d)(1)(i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,’ unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” … . Here, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful. Furthermore, any potential prejudice to the defendants was ameliorated by a two-month adjournment of the retrial agreed to by the parties … . Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiff’s expert from testifying at the retrial … . Burbige v Siben & Ferber, 2014 NY Slip Op 01426, 2nd Dept 3-5-14

 

“Prompt Pay Law” Affords a Private Right of Action Against An Insurer Which Fails to Pay a Patient’s Undisputed Medical Claim

In a full-fledged opinion by Justice Austin, the Second Department determined the so-called “Prompt Pay Law” (Insurance Law 3224-a) affords an implied private right of action.  The law, therefore, can be enforced by a private lawsuit based upon its breach.  The defendant insurance company (First United) argued only the NYS Insurance Department could enforce the statute.

The Prompt Pay Law requires an insurer to pay undisputed claims within 30 days after receipt of an electronic submission or within 45 days after receipt by other means (see Insurance Law § 3224-a[a]). If a claim is disputed, the insurer is obligated to pay the undisputed portion of the claim, if there is any, and, within 30 days of receipt of the claim, notify the policyholder, covered person, or health care provider in writing of the specific reason that the insurer is not liable to pay the claim (see Insurance Law § 3224-a[b][1]). In the alternative, the insurer may request additional information necessary to determine its potential liability with respect to payment of the claim (see Insurance Law § 3224-a[b][2]). First United allegedly did neither. An insurer that fails to comply with the provisions of the Prompt Pay Law is obligated to pay the health care provider or the person submitting the claim the full amount of the claim, plus 12% interest per annum, to be computed from the date the claim was required to be paid (see Insurance Law § 3224-a[c][1]). * * *

Where a statute does not expressly confer a private cause of action upon those it is intended to benefit, a private party may seek relief under the statute “only if a legislative intent to create such a right of action is fairly implied’ in the statutory provisions and their legislative history” … . This inquiry involves three factors:” (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … .Only the third factor, which is generally the “most critical” … is disputed here. * * *

A review of the legislative history of the Prompt Pay Law reflects that the law was directed toward the protection of health care providers and patients from late payment of claims, and was not primarily designed to provide a mechanism for preventing harm to the public in general.  Maimonides Med Ctr v First United Am Life Ins Co, 2014 NY Slip Op 01441, 2nd Dept 3-5-14

 

Criteria for a Civil Contempt Finding

The Second Department, in finding defendant had violated a court order with respect to discovery (and therefore was in contempt), explained the criteria for civil contempt:

“To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order of the court, clearly expressing an unequivocal mandate, of which that party had knowledge, and that as a result of the violation a right of a party to the litigation was prejudiced” … . The movant bears the burden of proving the civil contempt by clear and convincing evidence… . DeMaio v Capozello, 2014 NY Slip Op 01291, 2nd Dept 2-26-14

 

Setback Dimensions Drawn on Subdivision Map Not Reflected in Documents in Defendants’ Chain of Title/Setback Restrictions, Therefore, Did Not Run With the Land

The Second Department reversed Supreme Court, finding that the setback lines drawn on a subdivision map were not reflected on the documents in defendants’ chain of title and, therefore, did not run with the land:

“[T]he policy of the law is to favor free and unobstructed use of realty” … . “[A] purchaser takes with notice from the record only of incumbrances in his direct chain of title. In the absence of actual notice before or at the time of his purchase or of other exceptional circumstances, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to himself or his direct predecessors in title” … . “A purchaser is not normally required to search outside the chain of title” … . Deed restrictions are strictly construed against those seeking to enforce them and will be enforced only where their existence has been established by clear and convincing proof … .In this case, the plaintiffs failed make a prima facie showing that the front and rear yard setback lines drawn on the subdivision map are deed restrictions that run with the land. Contrary to the plaintiffs’ contention, there is nothing in the defendants’ chain of title which indicates that these setback lines are deed restrictions that run with the land… . Butler v Mathisson, 2014 NY Slip Op 01289, 2nd Dept 2-26-14

 

Plaintiff’s Alleging a Deed Executed Within the Ten-Year Statute of Limitations for Adverse Possession Is Void Creates a Presumption of Possession by the Plaintiff Within the Ten-Year Period

The Second Department determined that plaintiff’s action to quiet title was not time-barred. Plaintiff alleged decedent’s signature on a deed was forged. By alleging the 1998 deed was void, plaintiff is presumed to have had possession of the premises within the statutory 10-year statute of limitations for adverse possession:

CPLR 212(a) provides that “[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action” (CPLR 212[a]…). However, CPLR 212(a) must be read together with RPAPL 311, which provides that “the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action” (RPAPL 311 [emphasis added]…)..Here, the plaintiff sufficiently alleged possession of the subject premises within 10 years of commencing this action by asserting that the 1998 deed …, as well as each subsequent deed in the chain of title, was void. Under these circumstances, “the plaintiff, as the alleged legal title holder of the premises, is presumed to have possession of the premises within the time required” … . Elam v Altered Ego Realty Holding Corp, 2014 NY Slip Op 01292, 2nd Dept 2-26-14

 

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Criteria for Valuation of Vacant Land Explained

The Second Department determined Supreme Court properly valued the condemned vacant land. Supreme Court rejected the village’s contention that Supreme Court had improperly incorporated the enhancement of value resulting from the inclusion of the property in the village’s urban redevelopment plan. The court explained the criteria for determining the value of vacant land:

In a case involving the taking of property, “[t]he measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” … .Where an increment is added to the value of vacant land to reflect its development potential, “the specific increment which is selected and applied must be based on sufficient evidence and be satisfactorily explained” … . Moreover “[i]t is … necessary to show that there is a reasonable possibility that the property’s highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award” … .”[A] condemnee may not receive an enhanced value for its property where the enhancement is due to the property’s inclusion within a redevelopment plan” … . Thus, for example, property zoned for industrial use “should be valued in accordance with the industrial zoning designation which would apply if the redevelopment plan did not exist,” for “[a] condemnee is only entitled to compensation for what it has lost, not for what the condemnor has gained”… . Matter of Village of Haverstraw (AAA Electricians Inc), 2014 NY Slip Op 01332, 2nd Dept 2-26-14

 

Stipulation of Settlement Not Unconscionable/Provision Relating to Child Support Invalid Because No Indication Parties Were Advised of the Relevant Portions of the Child Support Standards Act

The Second Department determined Supreme Court should not have vacated a stipulation of settlement as unconscionable. However, the provision in the stipulation relating to child support was invalid because it did not indicate the parties were advised of the relevant portions of the Child Support Standards Act. The court explained the criteria for unconscionability in this context:

“A stipulation of settlement which is made in open court by parties who are represented by counsel and who unequivocally agree to its terms will not be set aside absent a showing that the stipulation was tainted by mistake, fraud, duress, overreaching or unconscionability” … . As relevant here, a stipulation of settlement is unconscionable if it “is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the … judgment of any person of common sense” … . However, a stipulation of settlement is not unconscionable “simply because it might have been improvident or one-sided” … . The defendant here, as the party seeking to vacate the stipulation of partial settlement, had the burden of showing that its terms were unconscionable … . O’Hanlon v O’Hanlon, 2014 NY Slip Op 01303, 2nd Dept 2-26-14

 

Defendant’s Failure to Comply with Stipulated Custody Arrangement Warranted Awarding Sole Custody to Plaintiff

The Second Department determined Supreme Court had correctly found a change in circumstances justifying a change in the custody arrangement (sole custody awarded to the plaintiff). Despite the stipulation allowing liberal visitation by the plaintiff, the defendant did not comply with the agreement:

“Where parents enter into an agreement concerning custody, it will not be set aside unless there is a sufficient change in circumstances since the time [*2]of the stipulation and unless the modification of the custody agreement is in the best interests of the children'” … . In determining the child’s best interests, the court must look to the totality of the circumstances … . “As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the [c]ourt’s determination should not be disturbed unless it lacks a sound and substantial basis in the record” … .In this case, the critical issue facing the Supreme Court was the parties’ relative abilities to foster a relationship with the noncustodial parent and to cooperate in coordinating long-distance visitation. As we have stated, “one of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination” … . In contrast, “[w]illful interference with a noncustodial parent’s right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent” … . Alvarez v Alcarez, 2014 NY Slip Op 01286, 2nd Dept 2-26-14

 

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Unjust Enrichment Does Not Require a Wrongful Act by the One Enriched

The Second Department explained the criteria for determining a motion to dismiss for failure to state a cause of action and the elements of an unjust enrichment cause of action. Unjust enrichment does not require a wrongful act:

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … .”The essential inquiry in any action for unjust enrichment or restitution is whether … it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered … .”Unjust enrichment . . . does not require the performance of any wrongful act by the one enriched” … . “Innocent parties may frequently be unjustly enriched” … . “What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it'” … . Alan B Greenfield MD PC v Beach Imaging Holdings LLC, 2014 NY Slip Op 01285, 2nd Dept 2-26-14

 

Father Demonstrated Child Was Constructively Emancipated/Child Support Obligation Terminated

The Second Department determined Family Court should have terminated father’s child support obligation because the child was “constructively emancipated:

””It is fundamental public policy in New York that parents are responsible for their children’s support until age 21″ … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment”… . ” [W]here it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent’… . Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” … . Where a child justifiably refuses to continue a relationship with a parent due to such parental conduct, the child will not be deemed to be self-emancipated … . “The burden of proof as to emancipation is on the party asserting it”… . * * *The evidence at the hearing established that the father consistently made a serious effort to maintain a relationship with the subject child during the relevant time period. The testimony adduced at the hearing demonstrated that the father regularly called the subject child at the mother’s home, but his calls would either go unanswered, or, according to the mother, the subject child would refuse to speak with him. The father testified that he left messages indicating his willingness to participate in counseling with the subject child, but these offers were not accepted. On special occasions, the father left gifts and cards for the child that the child did not acknowledge. The father also contacted the child’s therapist and suggested therapeutic visitation with the child. However, the child refused this offer. In addition to demonstrating the father’s serious efforts to maintain a relationship with the child, the evidence demonstrated that, during the relevant period of time, the father’s behavior was not a primary cause of the deterioration in his relationship with the subject child. Based on the evidence presented at the hearing, the father satisfied his burden of demonstrating that the subject child was constructively emancipated, and a finding in the father’s favor in connection with this issue is warranted by the facts. Matter of Jurgielewicz v Johnston, 2014 NY Slip Op 01325, 2nd Dept 2-26-14

 

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