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“Standing” to Bring Foreclosure Action Defined

The Second Department explained “standing” as it relates to a mortgage foreclosure action as follows:

Where, as here, standing is put into issue by the defendant, “the plaintiff must prove its standing in order to be entitled to relief”…. “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” … .  Deutsche Bank Natl Trust Co v Whalen, 2013 NY Slip Op 04770, 2nd Dept 6-26-13

 

Exceptions to “No-Damage-for-Delay” Clause in Construction Contract Explained

The defendant library was sued by the plaintiff contractor which claimed the library caused a delay in the performance of a contract by failing to secure access to an adjacent property which was necessary before plaintiff could complete the work.   In affirming the denial of summary judgment to the defendant library, the Second Department listed the exceptions to the enforceability of a “no-damage-for-delay” clause:

“A clause which exculpates a contractee from liability to a contractor for damages resulting from delays in the performance of the latter’s work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally”…. However, “even with such a clause, damages may be recovered for: (1) delays caused by the contractee’s bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee’s breach of a fundamental obligation of the contract”….  Aurora Contrs Inc v West Babylon Pub Lib, 2013 NY Slip Op 04762, 2nd Dept 6-26-13

 

Motion for Default Judgment Should Have Been Denied; Motion to Compel Acceptance of Late Answer Should Have Been Granted

The Second Department determined Supreme Court should not have granted plaintiff’s motion for a default judgment and denied defendant’s motion to compel the acceptance of a late answer:

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant Lockwood Associates, LLC (hereinafter Lockwood), and in denying Lockwood’s cross motion pursuant to CPLR 3012(d) to compel the plaintiffs to accept service of its answer. Considering the lack of any prejudice to the plaintiffs as a result of Lockwood’s relatively short delay in answering, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, Lockwood’s delay in answering should have been excused….  Grammas v Lockwood Assoc LLC, 2013 NY Slip Op 04776, 2nd Dept 6-26-13

 

Motion for Resentencing Under CPL 440.46 (Drug Reform Law) Properly Denied

The Second Department affirmed Supreme Court’s denial of defendant’s motion for resentencing pursuant to CPL 440.46:

When a defendant is eligible for resentencing pursuant to CPL 440.46, there is ” a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof'”…. “However, resentencing is not automatic, and the determination is left to the discretion of the Supreme Court”…. In exercising its discretion, a court may “consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the defendant] or the people” (L 2004, ch 738, § 23), including the defendant’s institutional record of confinement, the defendant’s prior criminal history, the severity of the current offense, whether the defendant has shown remorse, and whether the defendant has a history of parole or probation violations…. Relevant considerations include the defendant’s status as a probation or parole violator as a consequence of the conviction for which resentencing is sought…, and the defendant’s conviction of a violent felony subsequent to the commission of the narcotics felony for which resentencing is sought…. People v Parker, 2013 NY Slip Op 04831, 2nd Dept 6-26-13

 

Plea Colloquy Raised Concerns Requiring Further Inquiry Re: Defendant’s Mental Health

The Second Department determined that defendant’s plea colloquy raised concern about defendant’s mental health requiring inquiry by the sentencing court:

Here, in light of the defendant’s known history of mental illness, and the finding within six days after commission of the instant sex offense that the defendant was suffering from psychotic symptoms attributable to bipolar disorder, for which he required hospitalization, certain statements made during the defendant’s plea allocution—specifically, statements regarding the complainant’s impression that, at the time of incident, the defendant was “very very much mentally unwell”—“signaled that [the defendant] may have been suffering from a mental disease or defect” when the offense was committed, thereby triggering the Supreme Court’s duty to inquire…. The trial court’s failure to conduct any inquiry as to a potential affirmative defense to the charges based upon mental disease or defect (see Penal Law 40.15), requires vacatur of the defendant’s plea of guilty…. While the People are correct that the defendant’s argument is unpreserved for appellate review, preservation is not required where, as here, under the totality of the circumstances, the defendant’s guilt and the voluntariness of the plea were called into question before the court….  People v Grason, 2013 NY Slip Op 04827, 2nd Dept 6-26-13

 

Neglect Proceeding “Adjourned in Contemplation of Dismissal” Properly Considered and Findings of Forensic Psychologist Properly Ignored in Modification of Custody Proceeding

In affirming Family Court’s modification of custody, the Second Department noted that Family Court properly considered a neglect proceeding that was adjourned in contemplation of dismissal (not a determination on the merits) and Family Court was not required to accept the recommendations of the court-appointed forensic psychologist.  Matter of Selliah v Penamente, 2013 NY Slip Op 04815, 2nd Dept 6-26-13

 

Motion to Withdraw Plea Should Have Been Granted

In determining defendant’s motion to withdraw his plea (which had been based in part upon the disposition of another indictment subsequently dismissed) should have been granted, the Second Department wrote:

Defendant pleaded guilty as part of a joint disposition of this case and another case, upon which he would be receiving a concurrent sentence of one year. However, the other indictment was dismissed, with finality, before defendant’s sentencing. The court should have granted defendant’s plea withdrawal motion, made on the ground that the plea had been induced by a promise that was ultimately unfulfilled…. The record establishes that defendant’s plea was induced in large part by the court’s specific representation that defendant was resolving two pending prosecutions. “It simply cannot be said on this record that defendant . . . would have pleaded guilty absent this assurance” …. As the dismissal of the other indictment amounted to a fundamental change in a “condition that induced [defendant’s] admission of guilt” …, he was entitled to withdraw his plea ….  People v Bennett, 2013 NY Slip Op 04714, 1st Dept, 6-20-13

 

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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

 

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