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Variance Properly Granted/Review Criteria Explained

The Second Department, after noting that an application for a variance can be made by an agent for the property owner, determined the Board of Zoning Appeals had properly granted the lot-width variances.  In explaining the court’s role in reviewing variances, the court wrote:

…”[L]ocal zoning boards are vested with broad discretion in considering applications for area variances, and [c]ourts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure'” … . A variance determination of a zoning board should be sustained if it has a rational basis and is not arbitrary and capricious … .

Here, the Board properly balanced the requisite statutory factors, and its determination that the benefit to the applicant of the requested variances outweighed the detriment to the health, safety, and welfare of the neighborhood or community had a rational basis and was not arbitrary and capricious (see Town Law § 267-b[3][b]…). Among other things, the Board found that, despite a few wide lots in the vicinity of the premises, the majority of lots in the uninterrupted two-block segment of Bayview Avenue in which the subject premises were located had a width of 50 feet or less, and, thus, that the variances would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties. Matter of Huszar v Bayview Park Props LLC, 2013 NY Slip Op 05906, 2nd Dept 9-18-13

 

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New Affidavits Properly Allowed in Foreclosure Proceedings; Accuracy of the Execution or Notarizations of the Original Affidavits Could Not Be Confirmed

In affirming Supreme Court’s granting of plaintiff’s motion to substitute new affidavits of merit in a foreclosure proceeding because the accuracy of the execution and/or notarizations of the original affidavits could not be confirmed, the Second Department explained:

CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced … . ” Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party'” … . The provisions in CPLR 2001 and 5019(a) may only be employed to correct errors where the corrections do not affect a substantial right of the parties … .

Under the facts of this case, the Supreme Court providently exercised its discretion in granting the plaintiff’s motion. No substantial right of Eaddy [the defendant] will be affected by the court’s substitution of the new affidavits of merit and of the amount due … . The new proposed affidavits of merit and of the amount due list the same amounts due and owing as those stated in the original affidavits submitted with the application for the order of reference and the application for the judgment of foreclosure and sale. Further, Eaddy has remained in possession of the subject property throughout the pendency of the instant action. US Bank NA v Eaddy, 2013 NY Slip Op 05896, 2nd Dept 9-18-13

 

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Criteria for Seizure of Equipment Explained

In reversing Supreme Court, the Second Department determined the plaintiff, in a replevin action, was not required to demonstrate irreparable harm in an action for seizure pursuant to CPLR 7102.  The defendant had defaulted on an equipment lease.  The court wrote:

Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim … . Here, the plaintiff made such a showing … . Contrary to the court’s determination, the plaintiff was not required to demonstrate that it would suffer irreparable injury in order to obtain an order of seizure pursuant to CPLR 7102.  TCF Equip Fin Inc v Interdimensional Interiors, Inc, 2013 NY Slip 05893, 2nd Dept 9-18-13

 

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Opening Statement Provided Grounds for Dismissal of False Arrest/Malicious Prosecution Action

The Second Department affirmed Supreme Court’s grant of a judgment as a matter of law to the defendant in a false arrest/malicious prosecution case based upon plaintiff’s counsel’s opening statement. In the opening, counsel stated the defendant had been arrested after the eyewitness victim made an in-person identification of the plaintiff to a police officer.  Because the eyewitness identification provided probable cause for the arrest, the false arrest and malicious prosecution causes of action were not viable:

An application for judgment as a matter of law may be made at the close of an opposing party’s case, or at any time on the basis of admissions (see CPLR 4401). The grant of such an application prior to the close of the opposing party’s case is generally disfavored … . However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, “by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants”… . * * *

Here, the plaintiff, through his counsel, admitted that the eyewitness victim of the alleged crimes made an in-person identification of the plaintiff to a police officer, which led to his immediate arrest by that officer. This admission by the plaintiff, through his counsel, “so completely compromised” his position that the police lacked probable cause to arrest him, that the Supreme Court was justified in awarding judgment as a matter of law to the City…. Okunubi v City of New York, 2013 NY Slip Op 05886, 2nd Dept 9-18-13

 

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Summary Judgment Can Not Be Granted Based on Affidavit By Someone with No Personal Knowledge of the Facts, Even If Factual Information Not Disputed

A mortgage foreclosure action was discontinued at the plaintiff’s request because the limited signing officer who signed the affidavit in support of plaintiff’s motion for summary judgment did not have personal knowledge of the facts.  The defendant then cross-moved for summary judgment based on the plaintiff’s papers.  In explaining that Supreme Court should not have granted summary judgment to the defendant dismissing the action, the Second Department wrote:

…[W]here a motion for summary judgment is based solely upon an affidavit of someone with no personal knowledge of the facts, that circumstance generally presents only a ground for the denial of summary judgment…, not a ground to dismiss the action. [Defendant] failed to establish grounds to dismiss the action against her with prejudice, and there is no basis in this record supporting that request for relief. Accordingly, the Supreme Court improperly granted that branch of [defendant’s] cross motion which was, in effect, to dismiss the action against her with prejudice… . GMAC Mtge LLC v Bisceglie, 2013 NY Slip Op 05878, 2nd Dept 9-18-13

 

Denial of Parole Supported by Evidence

In reversing Supreme Court, the Second Department determined the Parole Board’s denial of parole was not arbitrary and capricious.  After noting that the 2011 amendments to Executive Law 259-c(4) did not apply retroactively, the court wrote:

…[T]he Supreme Court erred in concluding that the Parole Board’s determination was arbitrary and capricious … . Although the Parole Board’s primary focus in denying parole was the nature of the crime committed, the Parole Board also looked at the petitioner’s institutional record … . The Parole Board “need not expressly discuss each of [the statutory guidelines] in its determination” …, and it was not “required specifically to articulate every factor considered” … . Whether the Parole Board considered the proper factors and followed the proper guidelines are questions that should be assessed based on the “written determination . . . evaluated in the context of the parole hearing transcript” … . Here, the hearing transcript indicates that the Parole Board gave due consideration to a number of factors that reflected well on the petitioner, but that these factors did not outweigh those factors that militated against granting parole. Matter of Fraser v Evans, 2013 NY slip Op 05900, 2nd Dept 9-18-13

 

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Defendant Did Not Consent to Entry of Police Into His Home—the Police Accompanied a Parole Officer for the Express Purpose of Investigating a Burglary—Motion to Suppress Should Have Been Granted

The Second Department determined evidence seized from defendant’s home and statements made by the defendant should have been suppressed.  Using the authority to visit parolees, the police accompanied the parole officer to defendant’s home as part of a burglary investigation. The defendant was arrested after stolen property was noticed by the police in the home.  In determining the trial court erred when it found defendant had consented to the entry of the police into his home, the court wrote:

When the People rely on consent to justify an otherwise unlawful police intrusion, they bear the “heavy burden” of establishing that such consent was freely and voluntarily given … . “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” … . The People’s burden of proving voluntariness “cannot be discharged by showing no more than acquiescence to a claim of lawful authority” … .

We agree with the defendant that the People failed to prove that his consent to the entry into his home was voluntary. Consent is not voluntary where an officer falsely represents facts that normally establish the exercise of police authority to which a person would ordinarily yield … . Here, pursuant to the conditions of the defendant’s release to parole supervision, he was obligated to allow his parole officer to enter his home to conduct a home visit and conduct a related search of his residence. The People showed no more than the defendant’s acquiescence to this authority, which does not sustain their burden of proving that he freely and voluntarily consented to the entry by the detectives and the sergeant for the purpose of investigating the subject burglaries. People v Marcial, 2013 NY Slip Op 05920, 2nd Dept 9-18-13

 

Agents of Property Owner Can Be Liable Under Labor Law 240(1)

In reversing a verdict after trial, the Second Department noted that the Labor Law imposes liability upon the agents of the property owner, as well as the owner and general contractor:

In addition to owners and general contractors, Labor Law § 240(1) imposes liability upon agents of the property owner who have the ability to control the activity which brought about the injury … . * * * In light of the trial evidence, the jury should have been instructed to determine whether the defendants were acting as the homeowner’s agent, with the authority to supervise and control the injured plaintiff’s work on the roof … . Accordingly, since the error was not harmless a new trial is required… . Arto v Cairo Constr Inc, 2013 NY Slip Op 05863, Second Dept 9-18-13

 

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Husband’s Contribution to Purchase of Home by Wife’s Parents Constituted a Constructive Trust

In a divorce action, the Second Department affirmed Supreme Court’s determination that the husband’s [Henn’s] contribution toward the purchase of a house constituted a constructive trust.  The parties separated before Henn moved into the home.  The wife’s [Tyree’s] parents [the Raffas] contributed some money and purchased the home for Henn and Tyree, both of whom also contributed funds toward the purchase.  In concluding Henn’s contribution constituted a constructive trust, the court wrote:

Here, the Supreme Court correctly found that the first element relevant to imposing a constructive trust was satisfied, as Henn and the Raffas were related through marriage and they pooled their resources to purchase the subject premises … . Henn satisfied the second element by demonstrating that the Raffas implicitly promised to convey the premises to him and Tyree … . He satisfied the third element, which requires a showing that he acted in reliance on the promise, by establishing that he gave $58,500 to Samuel J. Raffa, and that Samuel J. Raffa used that money to purchase the premises … . As for the fourth element, which requires a showing of unjust enrichment flowing from the breach of the promise, the evidence adduced at trial established that Henn never moved into the premises or acquired a legal interest therein. To the contrary, he and Tyree separated the very month that the premises were acquired by the Raffas, and Tyree commenced this divorce action just a few months later. The Raffas remained the sole owners of the premises, and they did not return Henn’s $58,500. In view of this evidence, there is no basis upon which to disturb the Supreme Court’s determination… . Tyree v Henn, 2013 NY Slip Op 05895, 2nd Dept 9-18-13

 

Determination of Paternity Not in Child’s Best Interest; Mother Equitably Estopped from Seeking Paternity Determination

The Second Department determined a genetic marker test to determine appellant’s paternity was not in the best interest of the child and the mother was equitably estopped form asserting appellant’s paternity.  The appellant had not been part of the 16-year-old child’s life since the child was 18 months old and the mother had failed to appear in a paternity proceeding instituted when the child was 8 months old:

…[I]in appropriate circumstances, the doctrine of equitable estoppel may be asserted defensively by a purported biological father to prevent a child’s mother from asserting biological paternity where a genetic marker test would not be in the best interests of the child … . Here, the Family Court improvidently rejected the appellant’s equitable defense. An adverse inference may be taken against the mother for her failure to appear for the court-ordered genetic marker test in 1999, and her failure to pursue that proceeding … . Thereafter, the mother failed to commence a new proceeding for 13 years, during which time the subject child had no relationship with the appellant and lived with the mother, her current husband, and his half-siblings on the mother’s side. Accordingly, a genetic marker test is not in the best interests of the subject child, on the ground that the mother is equitably estopped from asserting the appellant’s biological paternity (see Family Ct Act § 532[a]…). Matter of Karen G v Thomas G, 2013 NY Slip Op 05901, 2nd Dept 9-18-13

 

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