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Fraud Cause of Action in Legal Malpractice Case Sufficiently Pled

In a legal malpractice action, the Second Department determined the cause of action for fraud should not have been dismissed:

…[T]he Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging fraud. “To properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff’s reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance” …. Here, the complaint alleged that the defendants committed fraud by misrepresenting that they “made a motion for a default judgment” when they “never made, filed, or drafted” such a motion, that the plaintiff relied on the misrepresentation, and that the defendants billed the plaintiff for drafting the motion. Those allegations were sufficient to state a cause of action to recover damages for fraud …. Vermont Mut Ins Co v McCabe & Mack, LLP, 2013 NY Slip Op 02392, 2012-00566, Index No 4510/10, 2nd Dept, 4-10-13

 

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Guilty Plea Forfeits All Ineffective Assistance Claims Except those Relating to Plea Bargain

The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining:
…[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. ​People v Barrett, 2013 NY Slip Op 02410, 2011-04637, Ind No 1727/10, 2nd Dept 4-10-13

 

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Criteria for Preemption by Martin Act

The Second Department noted the criteria for preemption of state law by the Martin Act:

…[T]he Supreme Court properly denied that branch of the defendant’s prior motion which was for summary judgment dismissing the complaint on the ground that it is preempted by the Martin Act (see General Business Law art 23-A). Since the plaintiff’s common-law causes of action to recover damages for breach of contract and derivative declaratory judgment causes of action are not “predicated solely on a violation of the Martin Act or its implementing regulations,” they are not preempted by the Martin Act … .  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

 

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Award of Sole Custody to Mother Without a Hearing Reversed—Reliance on Expert Recommendations Not Sufficient

In reversing the Family Court’s award of sole custody to the mother without a hearing, the Second Department wrote:

Here, the Family Court did not possess adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary. Indeed, the court was not involved when the parties agreed to the existing custody and parenting agreement, and only became involved in this proceeding after the prior Family Court Judge in this matter retired. Furthermore, although the court had the recommendations of an expert before it, the recommendations of experts are but one factor to be considered …, and “are not determinative and do not usurp the judgment of the trial judge” …. Accordingly, the Family Court erred in denying the father’s petition and, inter alia, awarding sole physical custody to the mother without first holding an evidentiary hearing on the issue of physical custody and visitation so that it could make an independent determination as to the best interests of the children on the basis of the evidence presented at such a hearing ….  Matter of Schyberg v Peterson, 2013 NY Slip Op 02406, 2011-1113, 2nd Dept, 4-10-12

 

Grant of Visitation to Mother of Deceased Father (Grandmother) Reversed​

In reversing Family Court’s grant of visitation to the children’s grandmother, the Second Department wrote:

A court determining a petition for grandparent visitation under Domestic Relations Law § 72(1), must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or equitable circumstances …. If the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child … . “[T]he courts should not lightly intrude on the family relationship against a fit parent’s wishes” … . “Indeed, it is strongly presumed that a fit parent’s decisions are in the child’s best interests” … .

In this case, the Family Court should have denied the grandmother’s petition for visitation. The death of the children’s father provided the grandmother with automatic standing to seek visitation (see Domestic Relations Law § 72[1]…). Nevertheless, the Family Court improvidently exercised its discretion in granting the petition. The evidence in the record … established that visitation was not in the best interests of the children at the time the Family Court granted the petition … . Moreover, we note that on this appeal, the attorney for the children supports the denial of visitation. Matter of Pinsky v Botnick, 2012 NY Slip Op 02402, 2012-03338 2012-07576, 2nd Dept, 4-10-13​

 

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Out-of-Pocket Expenses Must Be Alleged in Claim Based on Alleged Failure to Detect Child’s Medical Condition In Utero

In dismissing a medical malpractice action which was based upon a physician’s alleged failure to detect a medical condition from the review of a sonogram, a condition which may have caused the parents to terminate the pregnancy, the Second Department reviewed the available damages in such an action. Ultimately the Second Department determined that the plaintiffs’ failure to raise a question of fact about future expenses they will incur for care of the child (currently paid for by Medicaid) required dismissal of the complaint:

Although a child with a disability may not maintain a wrongful life cause of action, the child’s parents may, under certain circumstances, maintain a cause of action on their own behalf to recover the extraordinary costs incurred in raising the child … . To succeed on such a cause of action, which “sound[s] essentially in negligence or medical malpractice,” the plaintiffs “must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by” them … . Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice … . Further, the claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition …. The “parents’ legally cognizable injury’ is the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority’” … . Since the parents’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable ….  Mayzel v Moretti, 2013 NY Slip Op 02379, 2011-11393, Index No 102307/09, 2nd Dept, 4-10-13

 

Fact that Driver’s Negligence Was Deemed “Sole Proximate Cause” of Passenger’s Injury Did Not Warrant the Dismissal of Claims Against the Other Driver Involved in the Collision

The plaintiff was a passenger in a car which was involved in an accident, injuring plaintiff.  Plaintiff sued the driver of the car she was in (Pistorino).  Based on the finding that Pistorino had violated the Vehicle and Traffic Law by making a left turn in front of an oncoming car driven by defendant Allen, the motion court determined Pistorino’s act was the sole proximate cause of plaintiff’s injury and granted summary judgment to the plaintiff on liability. Allen, the driver of the other car, moved for summary judgment dismissing the claims against him based on the motion court’s “sole proximate cause” finding.  The Second Department reversed the motion court’s dismissal of the claims against Allen and wrote:

The Supreme Court erred, however, in granting that branch of Allen’s motion which was for summary judgment dismissing all cross claims asserted against him. Allen’s motion was based entirely upon the preclusive effect of the finding made by the Supreme Court in deciding the plaintiff’s motion for summary judgment, that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident. However, the issue of the relative fault of Jaclyn Pistorino and Allen was not raised by the plaintiff in her motion. Correspondingly, the plaintiff did not demonstrate that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident.  Anzel v Pistorino, 2013 NY Slip Op 02362, 2011-08058, 2011-11125, Index No 4001/11, 2nd Dept, 4-10-13

TRAFFIC ACCIDENTS

Abuse of Discretion in Disallowing Jury Challenge Required Reversal of Conviction

In reversing a conviction because of the trial court’s refusal to consider an “untimely” peremptory challenge, the Second Department wrote:

During the second round of voir dire, after questioning of the second group of prospective jurors was completed and each side had exercised challenges for cause, the Supreme Court asked defense counsel if he wished to exercise any peremptory challenges, and defense counsel responded, “No.” Seconds later, as the court named the first three prospective jurors in the group to be assigned seats, defense counsel interrupted, apologizing, and explained that he had intended to exercise a peremptory challenge against one of the remaining prospective jurors in that group, prospective juror number four. Although that prospective juror was not yet assigned a seat and the reuest was made just moments after defense counsel mistakenly accepted all of the remaining prospective jurors in that group, the court denied defense counsel’s request to challenge that juror as untimely. Under these circumstances, where there was no discernable interference or undue delay caused by defense counsel’s momentary oversight, the Supreme Court improvidently exercised its discretion in denying defense counsel’s request to challenge the prospective juror …. Since a trial court’s improper denial of a peremptory challenge mandates automatic reversal …, we must reverse the conviction and order a new trial ….  People v Parrales, 2013 NY Slip Op 02417, 2011-05827, Ind No 1194/10, 2nd Dept 4-10-13

 

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Malpractice/Negligence Claims Can Not Be Brought By Party Not In Privity with Law Firm

The Second Department dismissed a complaint against a law firm for malpractice because the law firm was not in privity with the plaintiffs with respect to the real estate transactions at issue.  The law firm represented the defendant in the transactions:

The law firm established, prima facie, its entitlement to judgment as a matter of law dismissing the third and fourth causes of action. In this regard, the law firm submitted evidence demonstrating that it was not in privity with the plaintiffs with respect to the subject transactions. “In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances'” … . Accordingly, the law firm established its entitlement to judgment as a matter of law dismissing the negligence cause of action. Moreover, the law firm submitted evidence demonstrating that it made no material misrepresentations to the plaintiffs …, thus establishing its entitlement to judgment as a matter of law dismissing the fraud cause of action. In opposition, the plaintiffs failed to raise a triable issue of fact … . Therefore, the Supreme Court should have granted that branch of the law firm’s motion which was for summary judgment dismissing the third and fourth causes of action.  Zinnanti v 513 Woodward Ave Realty, LLC, 2013 NY Slip Op 02244, 2011-10407, Index No 3092/10, 2nd Dept 4-3-13

 

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Action Under Labor Law Based On Injury On a Ship in Dry-Dock Not Preempted by Federal Maritime Law

A worker on a ship in dry-dock was injured when he fell through an open hole in the floor or deck.  He brought an action pursuant to the Labor Law.  Although the action was within the jurisdiction of federal maritime law, the Second Department held that the state labor law claims were not preempted by general maritime law:

…[T]here is no real dispute that the present action falls within federal maritime jurisdiction … . Contrary to the contention of the defendants third-party plaintiffs, however, the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not preempted by general maritime law. Under the circumstances of this case, the application of Labor Law §§ 240(1) and 241(6), which are local regulations enacted to protect the health and safety of workers in this state, will not unduly interfere with a fundamental characteristic of maritime law or the free flow of maritime commerce … . Accordingly, the Supreme Court properly denied that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing those causes of action insofar as asserted against the City. Durando v City of New York, 2013 NY Slip Op 02214, 2012-00535, Index No 33753/08, 2nd Dept 4-3-13