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PLAINTIFF DID NOT DEMONSTRATE THE RELEASE WAS PROCURED BY FRAUD, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff did not demonstrate the release plaintiff agreed to was procured by fraud. Therefore the motion to dismiss the causes of action covered by the release should have been granted:

“Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release” … . “If the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties” … . “Notably, a release may encompass unknown claims, including unknown fraud claims, if the parties so intend and the agreement is fairly and knowingly made” … .

“A release should never be converted into a starting point for . . . litigation except under circumstances and under rules which would render any other result a grave injustice” … . “A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake” … . “Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden of going forward . . . to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release” …  “A plaintiff seeking to invalidate a release due to fraudulent inducement must establish the basic elements of fraud, namely a representation of material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury” … . “[A] party that releases a fraud claim may later challenge that release as fraudulently induced only if it can identify a separate fraud from the subject of the release” … . JM UC Group, LLC v Precious Care Mgt., LLC, 2023 NY Slip Op 06034, Second Dept 11-22-23

Practice Point: The decision includes the text of a detailed release which is worth reading. A release can even cover unknown claims, even unknown fraud claims. Here plaintiff did not demonstrate the release was procured by fraud and the relevant causes of action should have been dismissed.

 

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THE 90-DAY TIME-LIMIT IN RPAPL 1371 FOR BRINGING A MOTION FOR A DEFICIENCY JUDGMENT AGAINST THE PURCHASER OF PROPERTY AT A FORECLOSURE SALE FUNCTIONS AS A STATUTE OF LIMITATIONS; THE MOTION HERE WAS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgagor’s order to show cause seeking a deficiency judgment against defendant, the purchaser of the property at the foreclosure sale, should have been dismissed as untimely pursuant to RPAPL 1371:

RPAPL 1371(2) states that “[s]imultaneously with the making of a motion for an order confirming the sale, provided such motion is made within ninety days after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action.” “The courts have uniformly treated the 90-day period contained in RPAPL 1371(2) as a provision in the nature of a statute of limitations, so that the plaintiff’s failure to serve notice within the 90-day period is a complete bar to the entry of a deficiency judgment, and the proceeds of the sale will be deemed to be in full satisfaction of the mortgage debt” … . JDRMDBP-SM, LLC v Hossain, 2023 NY Slip Op 06033, Second Dept 11-22-23

Practice Point: The 90-day time-limit in RPAPL 1371 for bringing a motion for a deficiency judgment against the purchaser of property at a foreclosure sale functions as a statute of limitations. A late motion must be dismissed.

 

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ALTHOUGH PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE TO PASS A MAIL TRUCK, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT REACTED REASONABLY TO AN EMERGENCY; TWO OTHER CARS HAD ENTERED DEFENDANT’S LANE TO GO AROUND THE TRUCK JUST BEFORE THE COLLISION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint in this traffic accident case should not have been granted. Plaintiff pulled into defendant’s lane of traffic to go around a mail truck. Just prior to the collision with plaintiff two other cars had passed the mail truck by pulling into defendant’s lane, yet plaintiff had not disengaged the cruise control. There was a question of fact whether defendant responded appropriately to the emergency:

A person facing an emergency is “not automatically absolve[d] . . . from liability” … . In determining whether the actions of a driver are reasonable in light of an emergency situation, the factfinder must consider “both the driver’s awareness of the situation and [the driver’s] actions prior to the occurrence of the emergency” … .

Defendant admitted that, after she noticed the mail truck, she observed two motor vehicles pass it by pulling out from behind the truck, crossing completely into the westbound lane, and returning to the eastbound lane of travel, but she nevertheless continued in the westbound lane without deactivating her cruise control. She then saw plaintiff’s vehicle cross over into her lane “possibly to see if there was oncoming traffic” before it reentered the eastbound lane. It was not until that point that plaintiff deactivated her cruise control, which had been set to 45 miles per hour. We conclude that issues of fact exist whether, given her observations, defendant responded reasonably under the circumstances … . Carollo v Solotes, 2023 NY Slip Op 05803, Fourth Dept 11-17-23

Practice Point: Here plaintiff entered defendant’s oncoming law to pass a mail truck and collided with defendant. Usually an emergency will absolve a driver of liability. But there was evidence two other cars had pulled into defendant’s lane to pass the mail truck and defendant did not disengage the cruise control. Therefore there was a question of fact whether defendant responded reasonably to the emergency.

 

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THE MOTIONS BEFORE THE COURT IN THIS TRAFFIC ACCIDENT CASE DID NOT ADDRESS WHETHER THE EMPLOYER OF THE DRIVER WHO REAR-ENDED PLAINTIFF WAS LIABLE TO PLAINTIFF; THE COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND AWARDED PLAINTIFF SUMMARY JUDGMENT AGAINST THE EMPLOYER OF THE DRIVER (FIRST DEPT).

The First Department, reversing Supreme Court in this traffic-accident case, determined Supreme Court should not have, sua sponte, searched the record to award plaintiff summary judgment. The motion before the court was brought by the owner of the car which rear-ended plaintiff, Piard, against the employer of the driver of Piard’s car, Y & H. Piard alleged she did not give Y & H permission to drive the car outside of Y & H’s garage and sought summary judgment on that ground. The court improperly searched the record and awarded plaintiff summary judgment against Y & H:

… [T]he motion court erred in searching the record and granting summary judgment to plaintiff on plaintiff’s claim against Y&H. A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense … . Here, the only issues raised with respect to defendant Piard’s motion and plaintiff’s cross-motion were defendant Piard’s liability and plaintiff’s comparative fault. The court therefore erred in granting summary judgment to plaintiff based on co-defendant’s Y&H’s liability. Christopher v Piard, 2023 NY Slip Op 05787, First Dept 11-16-23

Practice Point: There are limits on a court’s power to search the record and, sua sponte, award summary judgment. Here the motions before the court did not address whether the employer of the driver of the car which rear-ended plaintiff was liable to plaintiff. Rather the motions addressed whether the owner of the car had given permission to the employer of the driver to use her car. The motion court should not have searched the record and awarded summary judgment to plaintiff against the employer of the driver of the car.

 

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IN A PROCEEDING INTERRUPTED BY COVID THE JUDGE RULED ON FATHER’S PETITION TO RELOCATE WITH THE CHILD AND MOTHER’S CROSS-PETITION FOR SOLE CUSTODY WITHOUT COMPLETING THE HEARING; REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have ruled on father’s petition to locate with the child to New Jersey and mother’s cross-petition for sole custody without completing the hearing:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … . Here, the Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition in order to determine what arrangement was in the best interests of the child … . Matter of Janvier v Santana-Jackson, 2023 NY Slip Op 05732 Second Dept 11-15-23

Practice Point: In the midst of COVID the judge ruled on father’s petition to relocate with the child and mother’s cross-petition for sole custody without completing the related hearing. Reversed.

 

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THE JUDGE GRANTED FATHER’S MOTION FOR SANCTIONS (ATTORNEY’S FEES) WITHOUT AFFORDING MOTHER AN OPPORTUNITY TO BE HEARD; THE JUDGE RULED ON FATHER’S MOTION AFTER DECIDING TO GRANT MOTHER’S MOTION FOR RECUSAL; REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have awarded attorneys fees to father as sanctions for mother’s actions without affording mother an opportunity to be heard. In addition, the judge should not have ruled on  father’s motion for sanctions after deciding to grant mother’s motion for recusal:

… [T]he mother contends that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. We agree. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion … .

Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties … that it intended to grant the mother’s motion for recusal. Matter of Hunte v Jones, 2023 NY Slip Op 05731, Second Dept 11-15-23

Practice Point: Here, after deciding to grant mother’s motion for recusal, the judge granted father’s motion for sanctions (attorney’s fees) without affording mother an opportunity to be heard. Reversed.

 

A CHALLENGE TO THE FINAL TAX ASSESSMENT OF REAL PROPERTY BROUGHT BEFORE THE COMPLETION AND FILING OF THE ASSESSMENT MUST BE DISMIISSED AS UNTIMELY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, disagreeing with the Third Department, determined that an action challenging a real property tax assessment cannot be brought before the completion and filing of the assessment. Here the action was brought before the filing of the assessment and was therefore properly dismissed as untimely:

The time period within which a proceeding challenging a final assessment of real property may be commenced is set forth in section 702(2) of the Real Property Tax Law. Section 702(2) provides, in relevant part, that a proceeding to review the assessment of real property:

“shall be commenced within thirty days after the final completion and filing of the assessment roll containing such assessment. For the purposes of this section[,] an assessment roll shall not be considered finally completed and filed until the last day set by law for the filing of such assessment roll or until notice thereof has been given as required by law, whichever is later” … . * * *

The provision requires a petitioner to commence a proceeding within the 30-day period between the finalization of the tax assessment roll and the expiration of that statute of limitation or face dismissal. * * *

Thus, the failure to timely commence a Real Property Tax Law article 7 proceeding is “a complete defense to the petition” which “must be dismissed” … . Matter of Coscia v Town of Greenburgh, 2023 NY Slip Op 05729, Second Dept 11-15-23

Practice Point: Here the challenge to the real property tax assessment was brought in September 2016 but the completion and filing of the assessment was not until November 2016. The challenge was properly dismissed as untimely.

 

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ALTHOUGH DEFENDANT, A DOCTOR, USED A PORTION OF THE TWO-FAMILY HOUSE AS A STUDY OR HOME OFFICE, THE EXCLUSION OF OWNER-OCCUPIED TWO-FAMILY RESIDENCES FROM LIABILITY FOR SIDEWALK DEFECTS APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this sidewalk slip and fall case was entitled to summary judgment pursuant to the exclusion of one, two, and three- family residences from liability for sidewalk defects. Although defendant was a doctor and used space in the basement as a study, the residential character of the building was controlling:

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . …

… [T]he defendant established … that the premises abutting the public sidewalk was a two-family, owner-occupied residence, and thus, that she is entitled to the exemption from liability for owner-occupied residential property. Contrary to the Supreme Court’s determination, the defendant’s partial use of the basement as an office space was merely incidental to her residential use of the property … . While the defendant testified at her deposition that she was a doctor and used a portion of the basement apartment as a study or home office and that it held office equipment, no evidence indicated that she used the space with regularity or that she claimed the premises as her business address or as a tax deduction. McCalla v Piris-Fraser, 2023 NY Slip Op 05722, Second Dept 11-15-23

Practice Point: Here the owner of the two-family residence abutting the sidewalk where plaintiff slipped and fell was a doctor who had a study or home office in the basement. The home office or study did not transform the property to a business and the doctor was entitled to the “owner-occupied, two-family-residence” exclusion from liability in the NYC Administrative Code re: sidewalk defects.

 

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THE RELIGIOUS CEREMONY IN THIS SAME-SEX MARRIAGE TOOK PLACE IN 2005 BEFORE NEW YORK RECOGNIZED SAME SEX MARRIAGE; THE CIVIL MARRIAGE TOOK PLACE IN 2011 JUST AFTER ENACTMENT OF THE MARRIAGE EQUALITY ACT (MEA); DEFENDANT SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER TO ALLEGE THE MARRIAGE TOOK PLACE IN 2005 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined defendant’s motion amend the answer in this divorce proceeding to allege the date of this same-sex marriage to have been when the religious ceremony took place in 2005, as opposed the date of the subsequent civil marriage in 2011, should have been granted. In 2005 same sex marriage was not recognized in New York. The Marriage Equality Act (MEA) recognizing same sex marriage was enacted in 2011 and the parties civil marriage took place shortly after the enactment. There has been no determination the MEA cannot apply retroactively. So defendant’s motion to amend is not palpably improper and does not prejudice the plaintiff:

At this stage in the litigation, we are tasked only with determining whether the defendant should be permitted to amend her answer to make the claim that the date of the parties’ marriage was July 21, 2005, not July 28, 2011. “In the absence of prejudice or surprise to the opposing party, a motion for leave to amend the [pleadings] pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is ‘palpably insufficient’ to state a cause of action or is patently devoid of merit” … . * * *

… [T]he plaintiff failed to establish that the defendant’s proposed amendment was prejudicial to her in such a way that the defendant’s motion for leave to amend her answer should be denied. Neither the length of time between the defendant’s original answer and her motion for leave to amend, nor the fact that the amendment may affect the plaintiff’s maintenance and equitable distribution obligations, are sufficient to establish prejudice to the plaintiff … . Mackoff v Bluemke-Mackoff, 2023 NY Slip Op 05721, Second Dept 11-15-23

Practice Point: In this divorce case, the same-sex couple was married in a 2005 religious ceremony before the Marriage Equality Act (MEA). The couple was married again in a civil ceremony in 2011 shortly after the MEA was enacted. Defendant should have been allowed to amend her answer to state the marriage took place in 2005, not 2011.

 

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PLAINTIFF-STUDENT’S FINGER WAS CAUGHT IN A DOOR SHUT BY ANOTHER STUDENT ACTING AS A LUNCH MONITOR; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE SCHOOL PROVIDED ADEQUATE SUPERVISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student’s negligent supervision action against the Department of Education (DOE) should not have been dismissed. Plaintiff’s finger was caught in a door as the door was shut by another student who was acting as a lunch monitor. Plaintiff and other students banged on the door to get someone to open it, but its wasn’t opened for three minutes. The tip of plaintiff’s finger was severed:

… [T]he defendants failed to establish, prima facie, that the DOE adequately supervised the infant plaintiff … , or that its alleged lack of adequate supervision was not a proximate cause of the accident … . Significantly, the defendants’ submissions demonstrated that there was no adult monitoring the area where the accident took place and that, at the time of the accident, an assistant principal in the cafeteria was in the midst of calling for more assistance. Among the triable issues of fact presented by the defendants’ submissions were whether there was an appropriate level of supervision for the seventh-grade students under the circumstances … , and whether the school played a role in empowering or training the student lunch monitor with respect to closing the door to the kitchen.

Although there are certain accidents that occur in such a short span of time “that even the most intense supervision could not have prevented [them and] any lack of supervision is not the proximate cause of the injury” … , this is not one of those cases, especially in light of the fact that the infant plaintiff’s finger remained pinched by the closed door for approximately three minutes while he and his fellow students banged on the door. Fleming v City of New York, 2023 NY Slip Op 05714, Second Dept 11-15-23

Practice Point: The accident–plaintiff-student’s finger was caught (for three minutes) in a door shut by another student who was acting as a lunch monitor–raised a question whether the level of supervision by the school was adequate.

 

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