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Only Sellers’, Not Buyers’, Agent Can Be Liable for Failure to Disclose Lead Paint Dangers

In dismissing a complaint seeking damages pursuant to the Residential Lead-Based Paint Hazard Reduction Act (RLPHRA) for the failure to make disclosures regarding the dangers of lead paint, the Second Department noted that only seller’s agents, not buyer’s agents, can be held liable under the act:

The statutory language of the RLPHRA “is unambiguous with regard to the liability of real estate agents; only seller’s agents are liable” for the failure to ensure compliance with its provisions… . Contrary to the plaintiffs’ contention, it would be contrary to the unambiguous language of the statute to construe 24 CFR 35.86 so as to impose a duty on an agent or representative of a buyer… . Accordingly, the Supreme Court should have granted the …defendants’ motion to dismiss the complaint insofar as asserted against them. Felix v Thomas R Stachecki Gen Contr, LLC, 2013 NY Slip Op 03966, 2nd Dept, 6-5-13

 

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Out-Of-Possession Landlord Not Liable for Missing Light in Stairwell

The Second Department determined the out-of-possession landlord could not be liable for a missing light in a stairwell, the alleged cause of plaintiff’s fall:

“An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct”… . Here, the defendant established its entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord, that it was not contractually obligated to maintain the lighting at the premises or repair the alleged hazardous condition, that it did not endeavor to perform such maintenance, and that it did not violate any relevant statute or regulation… . Grimaldi v 221 Arlington Realty, LLC, 2013 NY Slip Op 03969, 2nd Dept, 6-5-13

SLIP AND FALL

 

Appreciation of Value of Marital Residence Should Have Been Reduced by Cost of Improvements

The Second Department determined Supreme Court should have reduced the distributive award based upon the appreciation in value of the marital residence during the marriage by the equitable share of the marital debt incurred in making improvements to the residence:

While the marital residence was the plaintiff’s separate property, the Supreme Court directed the plaintiff to pay the defendant the sum of $102,500 as a distributive award based on the appreciation in value of the marital residence that was attributable to the efforts of both parties in physically improving the property during the marriage (see Domestic Relations Law § 236[B][1][d][3]…). Although the defendant’s counsel noted at trial that the defendant’s distributive award based on the appreciation of the marital residence should be reduced by the defendant’s equitable share of the marital debt incurred in financing the improvements to the residence, the Supreme Court improperly failed to do so… . Szewczuk v Szewczuk, 2013 NY Slip Op 03987, 2nd Dept, 6-5-13

 

“Economic Necessity” Justified Relocation

The Second Department determined the mother’s relocation was in the best interests of the child based upon “economic necessity:”

“[E]conomic necessity . . . may present a particularly persuasive ground for permitting the proposed move”… .. Here, the mother demonstrated that she was not able to meet her living expenses while residing in Queens, and the father conceded that he did not regularly pay his share of the childcare expenses. The mother also demonstrated that, if she were permitted to relocate, her mother would assist with the childcare and that she and the child would be able to reside, at a reduced rent, in her mother’s home, located only blocks from where the child would attend school. While the father’s loss of weekly weekday contact with the child is neither trivial nor insignificant…, the relocation is not a great distance and the visitation schedule devised by the court in this case allows for the continuation of a meaningful relationship between the father and the child… . Matter of Sahagun v Alix, 2013 NY Slip Op 04009, 2nd Dept, 6-5-13

 

Family Court Award of Sole Custody to Mother Reversed, Sole Custody Awarded to Father

The Second Department reversed Family Court, which awarded sole physical custody to the mother, and awarded sole physical custody to the father:

Here, the Family Court’s award of sole physical custody to the mother lacked a sound and substantial basis in the record. In awarding the mother custody, the Family Court gave undue weight to its finding that the mother would be more likely than the father to foster a meaningful relationship between the subject children and the noncustodial parent. Furthermore, the Family Court failed to give sufficient weight to the forensic mental health evaluation, which indicated that the mother was not suitable for physical custody of the children and to its own finding that it was in the children’s best interests for them to remain away from Sherlock [the mother’s boyfriend] at all times. Under the totality of the circumstances, including the founded concerns with respect to Sherlock and the attendant risk his relationship with the mother posed to the safety and well-being of the subject children, the best interests of the children would be served by awarding the father sole physical custody ….Matter of James AS v Cassandra AS, 2013 NY Slip Op 03995, 2nd Dept, 6-5-13

 

No Basis in Record for Denying Noncustodial Parent Visitation

After affirming a derivative neglect finding against the mother based upon excessive corporal punishment of a sibling, the Second Department determined Family Court should not have denied her visitation:

Absent extraordinary circumstances, such as where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges… . Here, the Family Court improvidently exercised its discretion in failing to provide the mother with any visitation, either unsupervised or supervised, with Keith W., since there were no extraordinary circumstances justifying the denial of the mother’s right to reasonable visitation… .  Matter of Jacob P, 2013 NY Slip Op 04007, 2nd Dept, 6-5-13

 

Certification Order Requiring Filing of Note of Issue in 70, Rather than 90, Days Could Not Be Basis of Dismissal

The Second Department determined that a certification order which required a note of issue be filed within 70 days, rather than 90 days, could not be the basis for dismissal of the action:

The certification order dated March 2, 2010, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issue within 70 days, rather than 90 days, of the date of the order. Since the order failed to conform with a statutorily mandated condition precedent to dismissal of the action, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216… . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court… . Gu v Hatsis, 2013 NY Slip Op 03970, 2nd Dept, 6-5-13

 

Note of Issue Which States Discovery Not Complete Is a Nullity

The Second Department determined a note of issue which indicates discovery is not complete is a nullity:

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR 202.21[a], [b]). While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action …, here, the plaintiffs’ certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant’s motion which was to vacate the note of issue was properly granted… .  Furrukh v Forest Hills Hosp, 2013 NY Slip Op 03968, 2nd Dept, 6-5-13

 

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Failure to Allege Specific Facts to Rebut Process Server Affidavit Required Denial of Motion to Vacate Judgment w/o Hearing

The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served.  No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit:

“Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits'”…. Since the appellant never denied the specific facts contained in the process server’s affidavit, no hearing was required… .  Bank of NY v Samuels, 2013 NY Slip Op 03958, 2nd Dept, 6-5-13

 

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Statute of Limitations for Fraud Applies to Forgery​

The Second Department noted that the statute of limitations provisions for fraud are applied to forgery:

Contrary to the plaintiff’s contention, the statute of limitations for a fraud cause of action applies to a cause of action alleging forgery … .The statute of limitations for a fraud-based cause of action requires that the action be commenced within six years after the allegedly fraudulent act or within two years after discovery, whichever is later….   Faison v Lewis, 2013 NY Slip OP 03813, 2nd Dept, 5-29-13

 

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