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Plaintiff’s Lack of Knowledge About Contract Breaches Did Not Toll Statute of Limitations

The Second Department determined plaintiff’s lack of knowledge about alleged annual breaches of contract by the village for which he served as police commissioner was not the result of fraud and, therefore, the 18-month statute of limitations for each breach was not tolled:

Pursuant to CPLR 9802, “no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued.” Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment…. Here, as the Village correctly contends, the causes of action alleging breach of contract accrued at the end of each year that the plaintiff allegedly was not paid in accordance with his contract…. Since this action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the plaintiff sought to recover damages accruing prior to March 28, 2010, that is, 18 months prior to the commencement of the action…. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled or was otherwise inapplicable, or whether he actually commenced the action within the applicable limitations periods…. Contrary to the plaintiff’s contention, his lack of knowledge that the several breaches had occurred did not toll the running of the limitations period… Reid v Incorporated Vil of Flora Park, 2013 NY Slip Op 04321, 2nd Dept, 6-12-13

 

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Submission of Intentional and Depraved Indifference Murder to Jury in Conjunctive Rather than Alternative Okay

The Second Department determined the trial court did not err when it submitted intentional murder and depraved indifference murder to the jury in the conjunctive, rather than the alternative, because more than one potential victim was present:

The defendant, relying on People v Molina (79 AD3d 1371), contends that the submission of the counts of intentional murder (and attempted murder) and depraved indifference murder to the jury in the conjunctive, rather than in the alternative, violated his right to due process. However, the defendant’s contention is without merit. “Where, as here, more than one potential victim was present at the shooting, a defendant may be convicted of both counts because he or she may have possessed different states of mind with regard to different potential victims”…. To the extent that the Appellate Division, [3rd] Department, held differently in Molina, we disagree and decline to follow that holding. People v Dubarry, 2013 NY Slip Op 04354, 2nd Dept, 6-12-13

 

Relationships Among Subtenancy, Prime Tenancy and Landlord Explained

The Second Department explained the relationships among a subtenancy, the prime tenancy and the landlord as follows:

“As a general rule, where a landlord and prime tenant enter into an agreement to voluntarily terminate the paramount lease, the subtenant becomes the immediate tenant of the original lessor, and the interest of the subtenant and terms of the sublease continue as if no termination had occurred”…. “However, because a sublease is dependent upon and limited by the terms and conditions of the paramount lease from which it is carved, a subtenancy may be terminated by the expiration of the term of the prime tenant, or a re-entry by the landlord for a condition broken”….  380 Yorktown Food Corp v 380 Downing Dr, LLC, 2013 NY Slip Op 04327, 2nd Dept, 6-12-13

 

Criteria for Award of Support for Education

The Second Department explained the criteria for the award of support for a child’s college education as follows:

“Unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory'”…. “Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child’s college education is dependent upon the exercise of the court’s discretion in accordance with Domestic Relations Law § 240(1-b)(c)(7)’ …, and an award will be made only “as justice requires”‘”…. “[A] court must give due regard to the circumstances of the case and the respective parties, as well as both the best interests of the child and the requirements of justice” ….  Silverstein v Silverstein, 2013 NY Slip Op 04323, 2nd Dept, 6-12-13

 

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Family Court Should Have Granted Father’s Motion to Vacate a Fact-Finding Order

In an abuse and neglect proceeding, the Second Department reversed Family Court’s denial of father’s motion to vacate a fact-finding order after a hearing at which father was not present:

If a parent is not present, the court may proceed to hear a petition pursuant to Family Court Act article 10 if the child is represented by counsel (see Family Ct Act § 1042). However, a timely motion to vacate the resulting fact-finding order shall be granted upon an affidavit showing, inter alia, a potentially meritorious defense to the petition unless the court finds that the parent willfully refused to appear at the hearing….  Under the circumstances presented, the appellant adequately demonstrated that his failure to appear was not willful…. Moreover, the father demonstrated a potentially meritorious defense to the petitions …. Matter of Mark W, 2013 NY Slip Op 04347, 2nd Dept, 6-12-13

 

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Child’s Out-of Court Statements Sufficiently Corroborated

In affirming Family Court, the Second Department determined the child’s out-of-court statements were sufficiently corroborated:

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i]). A child’s out-of-court statements may form the basis for a finding of abuse or neglect if they are sufficiently corroborated by other evidence tending to support their reliability…. The Family Court has considerable discretion in deciding whether a child’s out-of-court statements describing incidents of abuse or neglect have been reliably corroborated ….  Contrary to the appellant’s contention, the Family Court’s determination that he sexually abused the subject child is supported by a preponderance of the evidence. The subject child’s out-of-court statement regarding the acts of sexual abuse upon her was corroborated by an expert in clinical and forensic psychology, with a specialization in child abuse, who evaluated the subject child and concluded that she exhibited behavior indicative of sexual abuse… .  Matter of Emani W, 2013 NY Slip Op 04346, 2nd Dept, 6-12-13

 

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Doctrine of Collateral Estoppel Re: Related Criminal Convictions Properly Applied

The Second Department determined Family Court properly applied the doctrine of collateral estoppel in an abuse proceeding based upon father’s criminal convictions:

The Family Court properly granted that branch of the motion of the ACS which was for summary judgment on the issue of the father’s derivative abuse. The ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable…. “A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”…. The father’s convictions of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child were based upon the same acts alleged to constitute sexual abuse as set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012[e][iii]).  Matter of Angelica M, 2013 NY Slip Op 04339, 2nd Dept, 6-12-13

 

Evidence of Mother’s Mental Illness, Without More, Did Not Justify Neglect Finding

The Second Department determined mother’s mental illness alone did not support a finding of neglect:

…[T]he Administration for Children’s Services (hereinafter the ACS), adduced evidence at the fact-finding hearing which established that the mother suffered from bipolar disorder at the time each of the two subject children were born. “A finding of neglect may be predicated upon proof that a child’s physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness”…. However, “proof of mental illness alone will not support a finding of neglect”; the evidence “must establish a causal connection between the parent’s condition, and actual or potential harm to the children”…. Here, the ACS failed to establish, by a preponderance of the evidence, the existence of a causal connection between the mother’s bipolar disorder and actual or potential harm to the subject children … .   Matter of Alexis SG…, 2013 NY Slip Op 04336, 2nd Dept, 6-12-13

 

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Disparaging Allegations in Complaint Protected by Judicial Privilege

In a defamation action, after finding that the disparaging allegations in a complaint were protected by judicial privilege, the Second Department criticized the use of invective in the pleadings:

The court properly concluded that the statements made in the underlying complaint were pertinent to the action and therefore absolutely protected by the judicial proceedings privilege… . The allegedly defamatory allegations were broadly pertinent to the tortious interference claim, as they bore on the mother’s intent, provided the context for the dispute, and supported the claim for punitive damages… . The pertinence of the statements negates any finding of abuse of the judicial proceedings privilege … . Moreover, the statements were expressions of opinion, not fact, or they constituted hyperbole, which are also absolutely protected… . *  *  * Nevertheless, although we affirm, we note our disapproval of defendants’ use of a filed pleading as a vehicle for offensive, albeit nondefamatory invective. Such conduct offends the dignity of judicial proceedings and should not be condoned.  Joseph v Joseph, 2013 NY Slip Op 04111, 1st Dept, 6-6-13

 

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Elements of Breach of Fiduciary Duty

The Second Department explained the elements of a cause of action for breach of fiduciary duty in the context of the board of directors of a corporation and the business judgment rule:

A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b)”…. “The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct”… . Members of a board of directors of a corporation “owe a fiduciary responsibility to the shareholders in general and to individual shareholders in particular to treat all shareholders fairly and evenly”….

The business judgment rule “bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes”… .   Deblinger v Sani-Pine Prods Co, Inc, 2013 NY Slip Op 03963, 2nd Dept, 6-5-13

 

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