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Erroneous Discharge of Mortgage Can Be Set Aside Where No Detrimental Reliance

The Second Department explained: “ ‘ A mortgagee may have an erroneous discharge of mortgage, without concomitant satisfaction of the underlying mortgage debt, set aside, and have the mortgage reinstated where there has not been detrimental reliance on the erroneous recording’ … .Only bona fide purchasers and lenders for value are entitled to protection from an erroneous discharge of a mortgage based upon their detrimental reliance thereon.”  Beltway Capital, LLC v Soleil,et al, 2011-02773, Index no 22244/07, Second Dept. 3-6-13

 

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Failure to Hold a Hearing on Mother’s Petition for Custody and Failure to Inform Father of Right to Counsel Required Reversal of Custody Determination

The Second Department determined Family Court’s failure to hold a hearing to determine the mother’s petition for custody, and the Court’s failure to advise the father that he had the right to counsel, required reversal of the grant of custody to the mother.  In the Matter of Savoca v Bellofatto, 2012-02935, Docket No V-22033-11, Second Dept 3-6-13

 

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Record-Keeping Was a Condition Precedent to Insurance Coverage

The record-keeping requirement in an insurance policy was a condition precedent. “Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff failed to comply with the record-keeping requirement set forth in the subject insurance policy, which was a clear condition precedent to coverage … “ Stars Jewelry…v Hanover Insurance Group, Inc., 2011-09098, Index No 5221/10, 2nd Dept. 3-6-13

 

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10-Year-Old Plaintiff’s Testimony Should Have Been Considered—No Need for Hearing to Determine Testimonial Capacity

The trial court’s determination the testimony of the 10-year-old plaintiff at a 50-h hearing should not be considered because there was no hearing to determine the infant plaintiff’s testimonial capacity was reversed by the Second Department.  “None of the parties challenged the infant plaintiff’s capacity to testify.  Under the circumstances, neither the infant plaintiff’s age nor his responses to the questioning necessitated a hearing.”  Perez v City of New York, 2012-03711, Index No 3451/10, 2nd Dept. 3-6-13

 

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Law Office Failure Justified Vacation of Default Judgment

The Second Department found the evidence in the motion to vacate a default was sufficient: “Here, the moving defendants’ claim of law office failure was supported by a ‘detailed and credible’ explanation of the default.  Moreover, the moving defendants demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion. Accordingly, the Supreme Court providently exercised its discretion in vacating their default in opposing the plaintiff’s motion for summary judgment.”  Properties, LLC v McDonald, LLC, et al, 2011-11434, 2012-04529, Index No 14525/09, 2nd Dept. 3-6-13

 

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Service Upon Employee Did Not Confer Personal Jurisdiction Over Corporation

The Second Department held that service upon an employee who was not an officer, director, managing agent, cashier, or an agent authorized to accept service, did not confer jurisdiction over a corporation, and the motion to dismiss for lack of personal jurisdiction should have been granted.  Fernandez v Town of Babylon …, Omni Recycling of Babylon, Inc., 2012-05513, Index No 4102/01, 2nd Dept. 3-6-13

 

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Standing to Seek Review of Site Plan Approval Based Upon Interest in Protecting the Ecological Health of a Body of Water Adjacent to Petitioner’s Property.

Petitioners had standing to seek review of a planning board’s site plan approval.  Petitioners, who lived one half mile from the site, alleged “direct harm, injury that is in some way different from that of the public at large … .  Their allegations that the approved construction project will harm their regular use, enjoyment, and interest in protecting the ecological health of Stony Brook Harbor, which is adjacent to their property, are sufficient to confer standing …”.  Matter of Shepherd vs Maddaloni, 2011-09750, Index No. 7867/11, Second Dept. 2-27-13

 

Proof of Lack of Constructive Notice Insufficient.

The Second Department explained that “[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” in opposing a motion for summary judgment in a slip and fall case.  Mahoney vs AMC Entertainment, Inc., 2012-00582, Index No. 2258/08, Second Dept. 2-27-13

 

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County Did Not Have the Power to Enact a Local Law to Repeal State Laws Concerning Property Tax.

The Second Department, in a full-fledged opinion by Justice Lott, determined that a local law enacted by Nassau County which purported to repeal portions of state laws concerning property tax violated the New York State Constitution and the Municipal Home Rule Law. Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2013 NY Slip Op 01265 [105 AD3d 113], Second Dept 2-27-13

 

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State Owns Submerged Land Below a Navigable Lake, Municipality Cannot Regulate Construction on Submerged Land (Docks).

The Second Department, in a full-fledged opinion by Justice Angiolillo, determined that where the state owns a navigable lake and the submerged land below the water, the state has the exclusive authority to regulate construction on the submerged land, absent delegation of that authority to the municipality. Town of Carmel v Melchner, 2013 NY Slip Op 01259 [105 AD3d 82], Second Dept 2-27-13

 

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