Tag Archive for: Second Department

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Will Provisions Can Not Be “Re-Written” by Court Even If Intestacy Results

In determining Surrogate’s Court properly determined mortgages secured by notes represented personal property and not “interests in real property” within the meaning of the will, the Second Department wrote:

Here, as the Surrogate’s Court properly recognized, notes secured by mortgages are generally construed to be personal property…, and there is nothing in the language of the decedent’s will that manifests an intent to include the subject notes within the clause devising his “interests in real property” to the petitioner. The construction suggested by the petitioner cannot be accepted since the court should not rewrite a will or supply an omission not necessarily implied by the language used, even though intestacy with respect to a particular asset results … . Matter of Cincotta, 2013 NY Slip Op 03671, 2nd Dept, 5-22-13

 

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Action for Fraud Can Not Be Based Upon Same Allegations as Action for Breach of Contract​

The Second Department explained that an action for fraud can not be based on breach of contract allegations:

“The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” …. However, “a cause of action premised upon fraud cannot lie where it is based on the same allegations as the breach of contract claim” …. Where a claim to recover damages for fraud is premised upon an alleged breach of contractual duties, and the allegations with respect to the purported fraud do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie …. Further, “[g]eneral allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support [a] claim” of fraudulent inducement… .  Fromowitz v W Park Assoc, Inc, 2013 NY Slip Op 03633, 5-22-13

 

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Failure to Demonstrate When Plaintiff Should Have First Become Aware of Fraudulent Conveyance Precluded Dismissal on Statute of Limitations Grounds​

The Second Department determined that causes of action alleging fraudulent conveyances pursuant to Debtor & Creditor Law 276 should not have been dismissed on statute of limitations grounds because the defendants failed to establish when plaintiff should have first become aware of the alleged fraud:

“A cause of action based upon actual fraud under Debtor and Creditor Law § 276 must be brought within six years of the date that the fraud or conveyance occurs, or within two years of the date the fraud should have been discovered, whichever is longer” …. Here, it is undisputed that the verified complaint did not allege the occurrence of any fraudulent conveyances within six years prior to the commencement of the action. However, since it is unclear when the plaintiff should have first been aware of the alleged fraud, the defendants failed to establish that the causes of action alleging actual fraud under Debtor and Creditor Law § 276 should be dismissed as time-barred ….  Felshman v Yamali, 2013 NY Slip Op 03632, 2nd Dept, 5-22-13

 

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Terms of Appellate Court’s Remittitur Must Be Strictly Followed

In a breach of contract action that had been remitted to Supreme Court, the Second Department determined Supreme Court failed adhere to the terms of the remittitur by failing to calculate interest and express the amount due and owing in accordance with the remittitur. In sending the case back to Supreme Court, the Second Department wrote:

“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” …. “An order or judgment entered by the lower court on a remittitur must conform strictly to the remittitur'” …. Berry v Williams, 2013 NY Slip Op 03625, 2nd Dept, 5-22-13

 

Defendant’s Burdens Re: Summary Judgment in Slip and Fall Case—Notice and Act of God​

In affirming the denial of defendant’s motion for summary judgment in a water-on-floor slip and fall case, the Second Department explained that a defendant can not point to gaps in the plaintiff’s case to meet its affirmative proof burdens re: notice and “act of God:”

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of establishing, prima facie, that it neither created the dangerous condition that allegedly caused the underlying accident nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it…. This burden cannot be satisfied merely by pointing to gaps in the plaintiff’s case … . * * *

With respect to the issue of whether the … defendants created a hazardous condition, they failed to establish their prima facie entitlement to judgment as a matter of law based on their contention that the water condition at the premises was caused by an act of God. For a loss to be considered the result of an act of God, human activities cannot have contributed to it in any degree… ..  Sawicki v GameStop Corp, 2013 NY Slip Op 03657, 2nd Dept, 5-22-13

 

 

Allegations Not Supported by Record Could Not Defeat Plaintiff-Pedestrian’s Motion for Summary Judgment/Plaintiff’s Mental Health Records Discoverable Where Plaintiff Alleges Anxiety and Mental Anguish After Being Struck by Defendant’s Van

Plaintiff was struck by defendants’ van as she was crossing a street.  In opposing the plaintiff’s motion for summary judgment, defendants claimed plaintiff was crossing when the signal was flashing the “don’t walk” icon, was talking on a cell phone, and “jumped” in front of defendants’ van.  In determining Supreme Court should have granted plaintiff’s motion for summary judgment, the Second Department wrote:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that she entered the crosswalk after exercising reasonable care and was walking within the crosswalk with the pedestrian crossing signal in her favor, and the defendant Kilakos was negligent in failing to yield the right of way (see Traffic Rules and Regs of City of NY [34 RCNY] § 4-03[a][1][i]; [c][1], [2];…). The assertions made by the defendants in opposition lacked an evidentiary basis in the record and, thus, failed to raise a triable issue of fact …. Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability.

The Second Department also determined Supreme Court properly granted defendants’ cross motion to compel the disclosure of plaintiff’s mental health records because she sought damages for anxiety, mental anguish and loss of enjoyment of life. Moreira v MK Travel & Transp, Inc, 2013 NY Slip Op 03645, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS, PEDESTRIANS

Allegation Plaintiff Abruptly Changed Lanes and Stopped in Front of Defendant Precluded Summary Judgment in Rear-End Collision Case​

In a rear-end collision case, the Second Department determined the allegation that the plaintiff abruptly changed lanes and came to a sudden stop in front of defendant raised a question of fact about plaintiff’s negligence:

Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law by demonstrating that his vehicle was fully stopped at a red traffic light when it was hit in the rear by the defendants’ vehicle…. In opposition, the defendants raised triable issues of fact as to whether the plaintiff was negligent in the operation of his vehicle, and whether his alleged negligence caused or contributed to the accident, through the affidavit of the defendant driver Roni J. Jaquez. Jaquez averred that the plaintiff’s vehicle abruptly changed lanes, directly in front of his vehicle, and then came to a sudden stop. … Markesinis v Jaquez, 2013 NY Slip Op 03641, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS

Speculation About Cause of Fall Required Dismissal of Complaint​

In determining the plaintiff’s resort to speculation about the cause of her fall required dismissal of the complaint, the Second Department wrote:

“In a slip-and-fall case, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” …. Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff and her husband, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation …. Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, that she did not know which foot made contact with the bar, and that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall. Deputron v A&J Tour, Inc, 2013 NY Slip Op 03629, 2nd Dept, 5-22-13

 

 

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Sudden Unexpected Action by Student Did Not Support Action Based on Negligent Supervision

In determining a student’s special education aide, who was standing nearby when the 8-year-old student suddenly placed his fingers inside the hinged side of a bathroom door (thereby immediately suffering injury), could not be liable for negligent supervision, the Second Department wrote:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” …. “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another” …. Moreover, “[w]here an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendant[ ] is warranted” … .  Gilman v Oceanside Union Fee Sch Dist, 2013 NY Slip Op 03634, 2nd Dept, 5-22-13

 

 

Differences Between Civil and Criminal Contempt Explained

In sending the case back to Supreme Court for a hearing on the issue of whether defendant is guilty of civil and/or criminal contempt (re: the violation of a court order), the Second Department explained the differences between the two types of contempt as follows:

“Civil contempt (see Judiciary Law § 753) has as its aim the vindication of a private party to litigation'” …. In order to prevail on a motion to hold a party in contempt, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party’s rights … .”It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party …. “The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence” … .

“[U]nlike a civil contempt proceeding, [in a criminal contempt proceeding,] proof of guilt must be established beyond a reasonable doubt” …. “The purpose of criminal contempt (see Judiciary Law § 750) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed since the right of the private parties to the litigation is not the controlling factor'” … .However, “[a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance” … .  Gomes v Gomes, 2013 NY Slip Op 03454, 2nd Dept, 5-15-13