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Notice of Claim Deemed Insufficient to Allege Negligent Design or Construction of Road

The Second Department dismissed a complaint against a town because the notice of claim alleged “damages for negligence arising out of the use, operation, ownership, maintenance, custody, and control of Hynes Road” but did not allege defective design or negligent construction of a road, the specific theories alleged in the complaint:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality … . While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, “a party may not add a new theory of liability which was not included in the notice of claim”… .

Here, the Town established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting proof that the notice of claim made no allegations that the Town defectively designed or negligently constructed the roadway where the accident occurred … .  Crew v Town of Beekman, 2013 NY Slip Op 02370, 2011-10932, Index No 7540/07, 2nd Dept, 4-10-13

HIGHWAYS AND ROADS

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Statute of Limitations Where Continuing Duty Allegedly Breached

The Second Department explained the application of the six-year “contract” statute of limitations where the duty alleged to have been breached is a continuing one:

“[W]here a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period” …. Here, the alleged breach is of the defendant’s obligation to pay annual assessments to the plaintiff. Thus, a new breach occurred for statute of limitations purposes each year the defendant failed to make an allegedly required payment to the plaintiff …. Meadowbrook Farms Homeowners Assn, Inc v JZG Resources Inc, 2013 NY Slip Op 02381, 2011-089/10, Index No 839/10, 2nd Dept 4-10-13

 

 

Statute of Frauds Precluded Recovery for Both Contract and Quantum Meruit Causes of Action

The Second Department ruled that an oral contract, as well as a related quantum meruit claim, were not enforceable under the statute of frauds (General Obligations Law):

A party’s admission of the existence and essential terms of an oral agreement is sufficient to take the agreement out of the statute of frauds… . However, if the parties dispute “the very terms and conditions of the alleged oral” agreement, the statute of frauds applies … . In the instant case, the defendants deny that they agreed to pay the plaintiff compensation based upon a percentage of any particular number. Thus, the Supreme Court correctly determined that there was no admission by the defendants as to the essential terms of the alleged contract.

With respect to the second cause of action, which sought compensation in quantum meruit, General Obligations Law § 5-701(a)(10) specifically recites that the requirement of a writing executed by the party to be charged applies to bar enforcement not only of an oral agreement to pay compensation for services rendered in negotiating the sale or leasing of real estate or an interest in a business, but also of “a contract implied in fact or in law” covering the same subject matter.  Camhi v Tedesco Realty, LLC, 2013 NY Slip Op 02368, 2011-08356, 2012-02256, Index No 14472/10, 2nd Dept, 4-10-13

 

 

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Hearing Required to Determine If Complaint Properly Served

In remitting the case for a hearing to determine whether defendant was properly served with the complaint, the Second Department wrote:

Here, the affidavit of service of the plaintiff’s process server describing service of process on the defendant NES Medical Services of New York, P.C. (hereinafter NES), constituted prima facie evidence of proper service on NES … . In support of that branch of their motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction, the appellants submitted an affidavit stating that the person served was neither employed by, nor authorized to accept service for, NES. Where, as here, “there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing” …. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on, and a new determination of, that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction. Rosario v NES Med Srvs of NY, PC, 2013 NY Slip Op 02388, 2011-10662, Index No 4465/11, 2nd Dept 4-10-13

 

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Unpleaded Cause of Action Can Be Raised in Opposition to Summary Judgment—Must Be Supported by Proof in Admissible Form

The Second Department noted that, in opposition to a motion for summary judgment, an unpleaded cause of action (which must be supported by proof in admissible form) may be raised:

The plaintiff, in opposition, …raised a new theory of liability …. A plaintiff may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff’s proof …. However, in the instant case, the plaintiff’s submission in support of the unpleaded cause of action was an affirmation of an attorney with no personal knowledge of the facts. That affirmation was not sufficient to raise a triable issue of fact to defeat the defendant’s prima facie showing of entitlement to judgment as a matter of law with respect to the allegations in the plaintiff’s pleadings …. Since the plaintiff submitted no evidence in admissible form in support of the unpleaded cause of action, she failed to raise a triable issue of fact. McCovey v Williams, 2013 NY Slip Op 02380, 2012-01315, Index No 38525/06, 2nd Dept, 4-10-13

 

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Requirements for Motion to Dismiss on Documentary Evidence

In this case, the Second Department addressed the proof requirements for a CPLR 3211(a)(1) motion (motion to dismiss on documentary evidence), the potential validity of an unsigned agreement in the context of such a motion, and the proper remedy when a referee exceeds his or her authority:

A motion pursuant to CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, although [defendant] offered documentary proof that the loan reinstatement agreement was not signed…, this proof does not conclusively dispose of the plaintiff’s specific performance or breach of contract claims since an unsigned agreement may constitute an enforceable contract where there is objective evidence establishing that the parties intended to be bound …. We further note that since [defendant] sought dismissal of the specific performance and breach of contract causes of action pursuant to CPLR 3211(a)(1) on the ground that it had a defense founded on documentary evidence, the motion should have been decided solely on the documentary evidence proffered in support of the motion. …. Furman v Wells Fargo Home Mtge Inc, 2013 NY Slip Op 02374, 2011-10281, 2011-10284, Index No 25616/09, 2nd Dept, 4-10-13

 

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Remedy When Referee Exceeds Authority

The Second Department explained the effect of a referee’s exceeding his or her authority:

“A referee derives his or her authority from an order of reference by the court” …. The scope of a referee’s duties are defined by the order of reference (see CPLR 4311;…). A referee “who attempts to determine matters not referred to him [or her] by the order of reference acts beyond and in excess of his [or her] jurisdiction” …. Here, the Supreme Court directed the referee to hear and report on the issues of whether the plaintiff complied with the terms of the loan reinstatement agreement …. Instead of making findings of fact and reporting them to the Supreme Court, the referee exceeded his authority by making a determination that the loan should be reinstated … . Since the referee had no authority to do so, the Supreme Court should have rejected his report in its entirety … . Furman v Wells Fargo Home Mtge Inc, 2013 NY Slip Op 02374, 2011-10281, 2011-10284, Index No 25616/09, 2nd Dept, 4-10-13

 

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Plaintiffs Entitled to Return of Down Payment When Mortgage Application Denied, In Spite of Failure to Apply for “No Income Check” Mortgage

The Second Department determined that it would have been futile for the plaintiffs to apply for a no-income-check mortgage so their failure to do so did not allow the defendants to hang on to the plaintiffs’ down payment:

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on their cause of action for return of their down payment by submitting evidentiary proof demonstrating that they applied to an institutional lender for a mortgage three days before the contract to purchase the defendants’ property was fully executed, that their application was denied through no fault of their own, and that they gave the defendants timely notice that they were exercising their right to cancel the contract pursuant to the mortgage contingency clause … . Under the circumstances of this case, the plaintiffs’ failure to additionally apply for a no-income-check mortgage, as required by a rider to the subject contract, did not raise an issue of fact as to whether they made a good faith effort to secure mortgage financing. The plaintiffs’ mortgage application was already pending as of the date of the contract, and the plaintiffs’ evidentiary submissions demonstrated that it would have been futile for them to additionally apply for a no-income-check mortgage in view of the lender’s determination that, based on their credit history, they were not eligible for a mortgage of any kind … . Etienne v Hochman, 2013 NY Slip Op 02373, 2011-08896, Index No 23466/08, 2nd Dept, 4-10-13

 

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Use Variance Criteria

The Second Department explained the criteria for a use variance as follows:

“[A] landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses” …. Here, [the property owner] failed to show, based on competent financial evidence, that it cannot yield a reasonable rate of return absent the requested variance. Therefore, the ZBA’s [Zoning Board of Appeals’] determination to grant a use variance for parking in the BB residence district must be annulled. Matter of Hejna v Board of Appeals…, 2013 NY Slip Op 02395, 2011-08146, Index No 29063/07, 2nd Dept 4-10-13

 

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Failure to Comply With Lease Option Can Be Forgiven if Certain Criteria Met 

The Second Department explained that the failure to strictly comply with the terms of a lease option (here involving notice to the landlord of the exercise of an option to terminate the lease) can be forgiven if certain criteria are met:

An optionee must exercise the option in accordance with its terms, within the time and in the manner specified in the option …. The defendant failed to strictly comply with the language in the option in purporting to exercise it. However, equity will intervene to relieve an optionee of the consequences of a failure to exercise an option in accordance with its terms where (1) the optionee’s failure to properly exercise the option resulted from an honest mistake or inadvertence, (2) refusal to recognize the exercise of the option would result in a substantial forfeiture by the optionee, and (3) the optionor would not suffer prejudice as a result … .  Pacific Dean Realty, LLC v Specific St, LLC, 2013 NY Slip Op 02385, 2011-10324, Index No 21508/10, 2nd Dept 4-10-13