You are here: / Second Department

Tag Archive for: Second Department

, ,

Conversion Action Can Not Be Based Upon Funds Which Came Into Party’s Possession Lawfully (Down Payment)

In a breach of (purchase) contract action, the Second Department explained that a conversion cause of action could not be based upon the down payment in seller’s possession, and an unjust enrichment cause of action could not be based on the same facts as the breach of contract cause of action:

The Supreme Court properly granted that branch of Smith’s motion which was for summary judgment dismissing the cause of action alleging conversion, since he was rightfully in possession of the down payment …. “Where one is rightfully in possession of property, one’s continued custody of the property and refusal to deliver it on demand of the owner until the owner proves his [or her] right to it does not constitute a conversion”…. The Supreme Court also properly granted that branch of the motion which was for summary judgment dismissing the cause of action alleging unjust enrichment as duplicative of the breach of contract cause of action….  Green Complex, Inc v Smith, 2013 NY Slip Op 04575, 2nd Dept, 6-19-13

 

Alleged Failure to Secure Mirror Which Fell During Removal Required Jury Charge on “Falling Objects” Theory

The Second Department determined Supreme Court erred when it did not charge the jury with Labor Law 240(1) as it applies to falling objects.  The plaintiff was injured when removing a mirror from the ceiling of a shower stall:

…[T]he trial court erred in failing to charge the jury in connection with Labor Law § 240(1) as it applies to falling objects, such as the mirror in this case. “[L]iability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell'”…. Moreover, whether the statute applies in a falling object case “does not . . . depend upon whether the object has hit the worker” but “whether the harm flows directly from the application of the force of gravity to the object”….  Here, the plaintiff contended that the accident occurred not only due to the wobbly ladder, but also because the mirror was not properly secured during the removal process, thus causing it to fall. While the object that fell was to be removed as part of the project, the location in which that item was situated and the lack of any device to protect the worker directly below it from a clear risk of injury raise a factual issue as to whether the object required securing for the purposes of the undertaking… .  Saber v 69th Tenants Corp, 2013 NY Slip Op 04591, 2nd Dept, 6-19-13

 

Dismissal of Labor Law 240, 241 and 200 Actions

In affirming the dismissal of Labor Law causes of action against a defendant who was not an owner, contractor or statutory agent, and who did not supervise or control work performance, the Second Department explained the relevant principles:

Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law §§ 240[1], 241[6];…). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured…. Similarly, where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 or pursuant to the principles of common-law negligence unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work .   Medina v RM Resources, 2013 NY Slip Op 04582, 2nd Dept, 6-19-13

 

,

Town Law Applies to Fire District Election

The Second Department explained that the Town Law, not the Election Law, controls in a fire district election.  The Town Law, unlike the Election Law, does not require that a voter whose registration status cannot be immediately verified provide an affidavit he or she is duly registered to vote. The issue was important because the fire commissioner election was won by one vote and the voter whose status could not be immediately verified did not provide an affidavit:

Town Law § 175-a requires voters in fire district elections to be duly registered to vote (see Town Law § 175-a). However, Town Law § 175-a does not require a voter whose voter registration status cannot be immediately verified to provide an affidavit stating that he or she is duly registered to vote. The Election Law, in contrast, does contain such a requirement (see Election Law § 8-302[e][ii]). Specific Election Law provisions, however, do not apply to fire district elections unless the Town Law makes them specifically applicable …. The Town Law does not reference Election Law § 8-302 in its provisions governing fire district elections, and, as such, the affidavit required under that statute was not required here.  Matter of Buechele v Fairview Fire Dist, 2013 NY Slip Op 04603, 2nd Dept, 6-19-13

 

Preclusion Proper Remedy for Failure to Comply with Discovery Deadlines and Requests

The Second Department determined the failure to comply with discovery deadlines and provide good faith responses to discovery requests justified the preclusion of evidence:

“The failure to comply with deadlines and provide good-faith responses to discovery demands impairs the efficient functioning of the courts and the adjudication of claims’”… . The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court…. Here, the plaintiff made a clear showing that the defendants failed to comply with the compliance conference order …. Which required them to respond to certain requests made in the plaintiff’s supplemental notice of demand for production of documents …, since the defendants did not provide meaningful responses to those demands (see CPLR 3126[3];…). Further, the defendants’ willful and contumacious conduct in failing to meaningfully respond to those demands was reasonably inferred from the defendants’ repeated failures to respond to the plaintiff’s demands and the court’s compliance conference order without a reasonable excuse…. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting evidence at trial with respect to those items … .  HR Prince, Inc v Elite Envtl Sys, Inc, 2013 NY Slip Op 04576, 2nd Dept, 6-19-13

 

,

Text Messages Authenticated Because They “Made No Sense” Unless Defendant Sent Them

The Second Department determined the content of text messages was admissible (i.e., authenticated) because the messages “made no sense” unless sent by the defendant:

…[T]he text messages from the defendant to the complainant were properly admitted into evidence. Since the content of the text messages “made no sense unless [they were] sent by defendant” …, the text messages themselves were sufficient to authenticate that they were sent by the defendant … .  People v Green, 2013 NY slip Op 04623, 2nd Dept, 6-19-13

 

,

Anonymous 911 Call Admitted Under Excited Utterance and Present Sense Impression Hearsay Exceptions

The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation:

The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication…. Contrary to the defendant’s contention, the recording was also properly admissible as a present sense impression, since the caller’s statements were sufficiently contemporaneous … and were corroborated by the evidence adduced at trial…. Additionally, the admission of the recording did not violate the defendant’s right to confrontation. The call was nontestimonial in nature, since its primary purpose was to obtain an emergency response to the shooting….  People v Dockery, 2013 NY Slip Op 04621, 2nd Dept, 6-19-13

 

Ambiguity Precluded Summary Judgment Based Upon Guarantee

In determining the motion for summary judgment based upon a guarantee was properly denied because of ambiguity about which obligations were guaranteed, the Second Department explained:

A written agreement that is complete, clear, and unambiguous on its face must be enforced so as to give effect to the meaning of its terms and the reasonable expectations of the parties, and the court should determine the intent of the parties from within the four corners of the contract without looking to extrinsic evidence to create ambiguities…. An agreement “is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion'”…  Furthermore, “[a] guaranty is a contract, and in interpreting it we look first to the words the parties used”…. “A guaranty must be construed in the strictest manner’”…, and a guarantor should be bound to the express terms of the written guaranty….  The document at issue, prepared by the plaintiff, is entitled “Personal Guaranty.” The “Guarantor” is defined as “Tony Melillo.” There is language in the body of the document indicating that the Guarantor is personally guaranteeing the payment and performance of the obligations of the “Importer.” The “Importer” is variously defined in the document as either “Tony Melillo, LLC,” or as “Tony Melillo.” Thus, there is an ambiguity in the document as to whose obligations Melillo was guaranteeing.  Wider Consl, Inc v Tony Melillo, LLC, 2013 NY Slip Op 04597, 2nd Dept, 6-19-13

 

Doctrine of Practical Location Re: Boundary Line Dispute Explained

In a boundary-line dispute, the Second Department affirmed the dismissal of a counterclaim for a judgment declaring that a hedgerow and chain-link fence running parallel to the recorded boundary line was the legal line under the doctrine of practical location.  The Second Department explained the doctrine as follows:

Pursuant to the doctrine of practical location, “[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary . . . although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners”…. “[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled'”….  Jakubowicz v Solomon, 2013 NY Slip Op 04578, 2nd Dept, 6-19-13

 

Late Notice of Election, Caused by Law Office Failure, Should Have Been Allowed

The Second Department determined Surrogate’s Court should have granted decedent’s surviving spouse’s petition for leave to file a late notice of election against the decedent’s estate.  The spouse executed a notice of election which was served on the attorney for the executor, but, because of law office failure, was never filed with Surrogate’s Court:

EPTL 5-1.1-A(d)(1) sets forth the specific procedures to be followed in exercising a right of election. “If the spouse defaults in filing such election within the time provided in subparagraph (d)(1) of this paragraph, the surrogate’s court may relieve the spouse from such default and authorize the making of an election . . . provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of the letters” (EPTL 5-1.1-A[d][2]). “An application for relief from the default and for an extension of time to elect shall be made upon a petition showing reasonable cause and on notice to such persons and in such manner as the surrogate may direct” (id.). Here, the surviving spouse demonstrated “reasonable cause” for her failure to timely file her notice of election by establishing, inter alia, that the delay was caused by law office failure, and she further established the absence of prejudice to any party (EPTL 5-1.1-A[d][2] … .  Matter of Sylvester, 2013 NY Slip Op 04613, 2nd Dept, 6-19-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy