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Criteria for Easement Granted in General Terms

In determining Supreme Court should have denied defendant’s motion to dismiss, the Second Department explained the criteria for an easement granted in general terms:

Where, as here, an easement is granted in general terms, “the extent of its use includes any reasonable use necessary and convenient for the purpose for which it is created”…. Further, the holder of an access easement “cannot materially increase the burden of the servient estate or impose new and additional burdens on the servient estate” … . Shuttle Contr Corp v Peikarian, 2013 NY Slip Op 05057, 2nd Dept 7-3-13

 

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No Need for Proof of Agent’s Authority—Five-Day Notice Demanding Rent Valid

The Second Department determined a five-day notice demanding unpaid rent under a lease was not invalid because it was signed by a purported agent of the landlord without proof of the agent’s authority to act for the landlord.  In so finding, the Second Department distinguished a case relied upon by the tenant:

…[T]he Appellate Term properly distinguished this Court’s decision in Siegel v Kentucky Fried Chicken of Long Is. (108 AD2d at 221). … Siegel is limited to the “factual peculiarities” of the lease in that case. The lease in Siegel, unlike the lease in the case at bar, designated certain rights that were to be exercised by “the Landlord or Landlord’s agent[ ]” and designated the landlord’s attorney by name, while the three-day forfeiture notice that was the subject of that dispute was sent by another attorney, who was unknown to the tenant …. The relevant provision of the lease herein (hereinafter the notice provision), provided that the “Landlord shall give Tenant written notice of default stating the type of default,” and, unlike the lease in Siegel, did not expressly obligate [landlord] to act only personally or through an identified agent. Consequently, although the notice indicated that it was signed by [landlord’s] previously unidentified agent, the failure to include evidence of the agent’s authority to bind the landlord, which we found necessary in Siegel, did not render [landlord] noncompliant with the requirements of the notice provision (see RPAPL 711[2]), and did not render the notice invalid. Matter of QPII-143-45 Sanford Ave, LLC v Spinner, 2013 NY Slip Op 05083, 2nd Dept 7-3-13

 

Question of Fact About Whether Plaintiff Had Standing to Bring Foreclosure Proceeding

The Second Department reversed Supreme Court, finding that the plaintiff was not entitled to summary judgment in a mortgage foreclosure proceeding.  The defendant alleged plaintiff did not have standing to bring the action. The Second Department determined the plaintiff failed to present sufficient evidence of its standing to support summary judgment in plaintiff’s favor.  In explaining the underlying legal principles, the Second Department wrote:

“In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced”…. “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident”…. However, “a transfer or assignment of only the mortgage without the debt is a nullity and no interest is acquired by it,” since a mortgage is merely security for a debt and cannot exist independently of it…. “Where, as here, the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief”…. Homecomings Financial, LLC v Guldi, 2013 NY Slip Op 05048, 2nd Dept 7-3-13

 

Proceeds of Sale of Property After Dissolution of Partnership Not “Profits”

The Second Department determined that the appreciation in the value of commercial real estate owned by a partnership after the date of dissolution did not constitute “profits” within the meaning of Partnership Law 73:

Partnership Law § 73 provides, in relevant part, “[W]hen any partner retires or dies, and the business is continued . . . he or his legal representative . . . shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option or at the option of his legal representative, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership.” * *

…[T]he Appellate Division, [4th] Department, held that the plaintiff’s share of the fair market value of a parcel of real property was fixed as of the date the partnership dissolved, and thus determined that the profits the plaintiff was entitled to in that case did not include increases in the value of real property after the date of dissolution. Here, since the partnership dissolved on April 12, 2000, the plaintiffs were not entitled to a share in the appreciation of partnership assets after that date… . Breidbart v Wiesenthal, 2013 NY Slip Op 05040, 2nd Dept 7-3-13

 

Libel Action Against Reporter Dismissed—No Showing of Gross Irresponsibility in Gathering and Verifying Information

In dismissing a libel action against a reporter who erroneously alleged in a newspaper story that plaintiff used money collected from students for workbooks to buy faculty lunches and an air conditioner for the faculty workroom, the Second Department wrote:

“[W]hen the claimed defamation arguably involves a matter of public concern, a private plaintiff must prove that the media defendant acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties'”…. The “standard of gross irresponsibility’ demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy” ….

Here, the record reveals that …some of the factual claims in the article and accompanying editorial were true, some of the claims were not, … .However, we nevertheless conclude that the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law by establishing that the article involved matters of public concern …, and that [the reporter] did not act in a grossly irresponsible manner while gathering and verifying information for the article…. Matovik v Times Beacon Record Newspapers,. 2013 NY Slip Op 05051, 2nd Dept 7-3-13

 

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Right of Confrontation Not Violated by Results of Tests by Persons Who Were Not Called as Witnesses

In determining defendant’s right to confrontation was not violated by evidence of DNA testing:

The court properly admitted files prepared by the New York City Medical Examiner’s Office containing DNA profiles derived from the testing of evidence recovered from the crime scenes, since the documents containing the DNA profiles, which were prepared prior to the defendant’s arrest, “did not, standing alone, link [him] to the crime” …. The testimony of the People’s expert witness established that she conducted the critical analysis at issue by comparing the DNA profiles derived from the crime scene evidence to the defendant’s DNA profile and concluding that all of the profiles matched…. Moreover, the DNA profile generated from the swab of the defendant’s cheek, standing alone, shed no light on the issue of the defendant’s guilt in the absence of the expert’s testimony that it matched the profiles derived from the crime scene evidence….  People v Washington, 2013 NY Slip Op 05096, 2nd Dept 7-3-13

TESTIMONIAL HEARSAY

 

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Writ of Coram Nobis Granted—Ineffective Assistance of Appellate Counsel

The Second Department granted defendant’s writ of coram nobis to vacate (dismissing the indictment), on the ground of ineffective assistance of appellate counsel.  Among the grounds for appeal not raised were: repugnant verdicts, erroneous and missing jury charges (including the statutory elements), failure to give a limiting charge with respect to evidence of defendant’s prior criminal record, and prosecutorial misconduct.  People v Morales, 2013 NY Slip Op 05094, 2nd Dept 7-3-13

 

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Judge’s Mistrial Order Precluded Retrial—Double Jeopardy

In precluding a retrial on double jeopardy grounds after the trial judge ordered a mistrial over defendant’s objection (granting the Article 78 prohibition petition), the Second Department explained the relevant criteria:

In a jury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL 40.30[1][b];..), and the defendant has a “valued right to have his [or her] trial completed by a particular tribunal” ….  ” [W]hen a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial'”…. “However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial”… .”Manifest necessity” means “a high degree of necessity”; “the reasons underlying the grant of a mistrial must be necessitous, actual and substantial” …. ” Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial'”…. Mistrials premised on the prejudicial effect of improper evidence or argument are entitled to “great deference” …, since “the Trial Judge, better than any other, . . . can detect the ambience of partiality”…. Nonetheless, the trial judge must “temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his [or her] confrontation with society through the verdict of a tribunal he [or she] might believe to be favorably disposed to his [or her] fate” … . Matter of Taylor v Dowling, 2013 NY Slip Op 05089, 2nd Dept 7-3-13

 

Court Can Not Order Treatment as Condition of Future Visitation—Okay to Order Treatment as Component of Supervised Visitation

The Second Department noted that Family Court should not have ordered a parent to undergo treatment as a condition of future visitation.  Rather treatment should have been ordered as a component of supervised visitation:

…”[A] court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation”…. Thus, the Family Court should have directed the mother to enroll in an assisted outpatient treatment program as a component of supervised visitation. Matter of Torres v Ojeda, 2013 NY Slip Op 05091, 2nd Dept 7-3-13

 

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Consent Order Not Appealable; Open Court Stipulation Valid

The Second Department noted that an order made on consent is not appealable and affirmed Family Court’s determination that a stipulation entered into in open court was valid:

Stipulations of settlement are favored by the courts and a stipulation made on the record in open court will not be set aside absent a showing that it was the result of fraud, overreaching, mistake, or duress”…. Here, the Family Court conducted a proper allocution of the mother, determining that she understood the terms of the stipulation, that she had sufficient time to consult with her attorney, and that she consented to the terms of the stipulation, and thus properly determined that she voluntarily and knowingly accepted the terms of the stipulation…. The mother’s contentions in support of her motion that she felt “forced into settling” and “misle[]d” by her attorney, and that she “did not fully understand what [she] was agreeing to” are insufficient to establish a claim of mistake or duress so as to warrant setting aside the stipulation of settlement… . Matter of Strang v Rathbone, 2013 NY Slip Op 05088, 2nd Dept 7-3-18

 

 

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