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(Harmless) Error for Prosecutor to Ask If Other Witnesses’ Testimony Was Untrue and to Ask About Defendant’s Silence Upon Apprehension

The Second Department noted that it was error for the prosecutor to ask defendant on cross-examination whether testimony which contradicted defendant’s was untrue, and to ask about his silence after he was apprehended. The errors were deemed harmless, however:

The defendant correctly contends that the prosecutor improperly asked him on cross-examination whether a prosecution witness’s testimony was “not true” because it contradicted the defendant’s recollection of events… . We also agree with the defendant that the prosecutor improperly cross-examined him about his silence when he was apprehended by the police …. However, under the facts of this case, the errors were harmless and did not deprive the defendant of a fair trial … . Indeed, with respect to the questions concerning the defendant’s silence after being apprehended, the trial court alleviated any prejudice by sustaining defense counsel’s objections to the two offending questions, striking the second question and answer from the record, and directing the jury to disregard the second question and answer. People v Cosme, 2013 NY Slip Op 07057, 2nd Dept 10-30-13

 

Decedent’s Acknowledgment of Paternity of Nonmarital Child Precluded Objections to Distribution by Sibling

In finding that the decedent’s brother did not have standing to raise objections to the distribution of an estate because the decedent had sufficiently acknowledged paternity of at least one nonmarital child, the Second Department wrote:

…[T]he appellant, in his capacity as a sibling of the decedent, had no standing to raise objections unless he could be considered a distributee of the decedent’s estate. Siblings, who are defined as issue of the decedent’s parents, are only distributees if the decedent dies without issue (see EPTL 4-1.1[a][3]). If the decedent here was survived by any issue, the appellant, in his capacity as a sibling of the decedent, does not have standing as a person interested in the estate (see SCPA 103[39]).

Since the decedent died after April 28, 2010, EPTL 4-1.2, as amended in 2010, is applicable (see L 2010, ch 64). That provision states, among other things, that a nonmarital child may inherit from his or her father and paternal kindred, if paternity was established during the decedent’s lifetime or “paternity has been established by clear and convincing evidence, which may include, but is not limited to: (i) evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own” (emphasis added). The affidavits in this case demonstrated that the decedent had at least one nonmarital child whom he openly and notoriously acknowledged as his own. As this Court noted …, “[t]o establish an open and notorious acknowledgment of paternity, there is no requirement that the putative father disclose paternity to all his friends and relatives. An acknowledgment of paternity in the community in which the child lives is sufficient.” Matter of Reape, 2013 NY Slip Op 07048, 2nd Dept 10-30-13

 

Effect of Ambiguity in Easement Explained

In finding there were triable issues of fact, the Second Department explained the effect of ambiguity in the wording of easements:

The extent of an easement claimed under a grant is generally determined by the language used in the grant … . However, where the language of the grant is ambiguous or unclear, the court will consider surrounding circumstances tending to show the grantor’s intent in creating the easement … . Here, the language of the grant creating an easement in favor of the Clemensens’ property for “ingress and egress over the continuation of [the] private roadway as now or hereinafter located to the Hudson River” is ambiguous.  Menucha of Nyack, LLC v Fisher, 2013 NY Slip Op 07015, 2nd Dept 10-30-13

 

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No Ambiguity in Contract; No Resort to Extrinsic Evidence

In affirming the grant of defendant’s motion for summary judgment in a contract action, the Second Department explained the analytical criteria concerning whether extrinsic evidence should be considered:

“[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing” … . Thus, “before looking to evidence of what was in the parties’ minds, a court must give due weight to what was in their contract” … . “A contract should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases” … . “Whether a contract is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous” … . “Moreover, courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” … .

Here, the plaintiff failed to show any ambiguity in the subject contract that would permit consideration of the proffered extrinsic evidence of an alleged oral agreement to clarify the meaning of [a] term … .  Outstanding Transp Inc v Interagency Council of Mental Retardation & Dev Disabilities, Inc, 2013 NY Slip Op 07020, 2nd Dept 10-30-13

 

 

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Failure to File Retainer Agreement In Medical Malpractice Action Remedied Nunc Pro Tunc

The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc.  The attorney (Siegel) was the second attorney retained in the matter (to handle the trial).  After the case settled, the second attorney sued the first (Glassman) over the amount of the fee.  The second attorney (Siegel) , however, had not filed a retainer agreement and made a motion to file late:

Every attorney practicing law in the Second Judicial Department who is retained with respect to, inter alia, a medical malpractice action must file a retainer statement with the OCA within 30 days after being retained … . Additionally, every “attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with the [OCA] a written statement of such retainer” (22 NYCRR 691.20[a][3]). Filing a retainer statement with the OCA is a condition precedent to the receipt of a fee for any case to which 22 NYCRR 691.20 applies … . Attorneys failing to correctly file a retainer statement with the OCA pursuant to 22 NYCRR 691.20 are precluded from asserting breach of contract causes of action for outstanding fees, and are limited to suit in quantum meruit … . However, a late filing of a retainer statement is sufficient to preserve an attorney’s right to recover fees where that attorney first obtains leave of court to file the statement nunc pro tunc … .

In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion … . Here, the reason for the delay, in effect, Siegel’s law office failure, was an isolated, inadvertent mistake … and there is no prejudice to Glassman… . Siracusa v Fitterman, 2013 NY slip Op 07025, 2nd Dept 10-30-13

 

Vacation of a Note of Issue Does Not Constitute Marking Off the Calendar/One Year Automatic Dismissal Did Not Apply

In affirming Supreme Court’s granting of plaintiff’s motion to restore a Labor Law action, the Second Department explained that vacating a note of issue does not constitute “marking off” or “striking” from the calendar under CPLR 3404:

CPLR 3404 states, in relevant part:

“[a] case . . . marked off’ or struck from the calendar or unanswered [*2]on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.”

The vacatur of a note of issue, as was done in this case on September 11, 2008, returns the case to pre-note of issue status. It does not constitute a marking “off” or striking the case from the court’s calendar within the meaning of CPLR 3404 … . Thus, contrary to the defendant’s contention, the one-year period under CPLR 3404 for automatic dismissal did not start to run on September 11, 2008, when the note of issue was vacated, and the case was not properly dismissed on that date under CPLR 3404. Accordingly, the plaintiff was not required to establish his entitlement to restoration of the action under that statute… . Montalvo v Mumpus Restorations, Inc, 2013 NY Slip Op 07017, 2nd Dept 10-30-13

 

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Affirmative Defense Waived by Absence from Initial Answer May Be Included in Amended Answer.

he Second Department determined a “lack of standing” defense to a mortgage foreclosure action, although initially waived by its absence from the pleadings, could be added in an amended answer:

Leave to amend a pleading “shall be freely given” (CPLR 3025[b]), provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit … . The decision of whether to allow an amendment is committed “almost entirely to the [motion] court’s discretion” … . “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” … .

Although …the homeowner defendants…waived the defense of lack of standing by failing to assert it as an affirmative defense in their initial answer (see CPLR 3211[e]), this defense can nevertheless be interposed by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay… .  HSBC Bank v Picarello, 2013 NY Slip Op 07011, 2nd Dept 10-30-13

 

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Abuse Not Demonstrated; Conflicting Expert Testimony

In upholding Family Court’s determination that petitioner had not demonstrated the child (Sincerity) was abused when the child was in the custody of the mother, in the face of expert testimony the child suffered forceful blunt trauma within 24 hours of death, the Second Department explained:

The Family Court Act defines an “[a]bused child,” inter alia, as “a child less than eighteen years of age whose parent or other person legally responsible for his [or her] care (i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death [or] (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death” (Family Ct Act § 1012[e][i], [ii]). The petitioner may establish a prima facie case of abuse through a method of proof “closely analogous to the negligence rule of res ipsa loquitur” (…see Family Ct Act § 1046[a][ii]…). If the petitioner establishes a prima facie case of abuse, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability,” although the burden of proof always remains with the petitioner … .

The Family Court’s assessment of witnesses’ credibility is accorded deference and will not be disturbed unless clearly unsupported by the record … . Where there is conflicting testimony and the matter primarily turns on an assessment of witnesses’ credibility, we accord great weight to the Family Court’s factual findings … . * * *

The mother’s expert witness, the forensic pathologist who conducted the autopsy on Sincerity’s body, testified that based upon a microscopic examination of the brain injury, Sincerity sustained the brain injury a few days to one week prior to her death. Notably, the petitioner did not present evidence establishing that Sincerity was exclusively in the mother’s care for a period of time greater than 24 hours before her death. Moreover, the forensic pathologist testified that she could not determine whether Sincerity died from blunt force trauma to the head or by accidental asphyxiation caused by being placed to sleep on her side and wrapped in a blanket on the mother’s futon. Matter of David T…, 2013 NY Slip Op 07049, 2nd Dept 10-30-13

 

In Court Stipulation Was Valid Postnuptial Agreement; DRL 236(B)(3) Did Not Apply

In affirming Supreme Court’s determination that a stipulation/postnuptial agreement, which was not signed in open court, was not invalidated by Domestic Relations Law 236, the Second Department explained:

…[T]he Supreme Court properly determined that the postnuptial agreement was valid and that Domestic Relations Law § 236(B)(3) does not compel a different result. “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (Domestic Relations Law § 236[B][3]). A written agreement between parties made before or during a marriage which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable … . However, Domestic Relations Law § 236(B)(3) “applies only to agreements entered into outside the context of a pending judicial proceeding”… . Moreover, “[s]tipulations of settlement are favored by the courts and are not lightly cast aside” … . Thus, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered” (CPLR 2104…).

Here, the record established that the parties relied on the duly executed stipulation of settlement, which was denominated as the postnuptial agreement, as a means of resolving the respondent’s prior divorce action. It is undisputed that the postnuptial agreement was executed while the respondent’s action was pending before the Supreme Court … . … Accordingly, the postnuptial agreement was valid, as it “was executed in the context of a pending divorce proceeding, and was subject to judicial oversight, even though it was not signed in open court” … . Rio v Rio, 1013 NY Slip Op 07023, 2nd Dept 10-30-13

 

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Question of Fact Whether Encroaching Hedge Was De Minimus Encroachment Re: Adverse Possession

The Second Department determined there was a question of fact about whether a hedge which encroached eight feet into plaintiff’s right of way was a “de minimus” encroachment within the meaning of the Real Property Actions and Proceedings Law (RPAPL) (re: adverse possession):

RPAPL 543(1), which was enacted in 2008, provides: “Notwithstanding any other provision of this article, the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.” The plaintiff contends that pursuant to RPAPL 543(1), the existence of all encroaching hedges and shrubbery, no matter how large, shall be deemed permissive and non-adverse. Under the plaintiff’s interpretation of the statute, the list of examples contained in RPAPL 543(1) are examples of “de [minimis] non-structural encroachments.” We reject this interpretation. The more reasonable interpretation of RPAPL 543(1) is that the list contains examples of “non-structural encroachments” which could still be adverse if they are not de minimis. This reading gives effect to the words “de [minimis],” while the plaintiff’s interpretation would render those words superfluous. “It is a cardinal principle to be observed in construing legislation that . . . whenever practicable, effect must be given to all the language employed. Our duty is to presume that each clause . . . has a purpose” … . Wright v Sokoloff, 2013 NY Slip Op 06856, 2nd Dept 10-23-13

 

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