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BREACH OF CONTRACT COUNTERCLAIM AGAINST HOME IMPROVEMENT CONTRACTOR PROPERLY DECIDED IN HOMEOWNERS’ FAVOR; THE CONTRACT DID NOT COMPLY WITH GENERAL BUSINESS LAW 771(1)(b) AND THE CONTRACTOR’S PERFORMANCE WAS DEFICIENT (THIRD DEPT).

The Third Department determined defendants’ breach of contract counterclaim against plaintiff contractor was correctly decided in defendants’ favor after a bench trial and the damages were proper (with the exception of one mistake). The Third Department noted that the home improvement contract did not comply with General Business Law 771 (1) (b):

The record reflects, and plaintiff does not dispute, that he failed to comply with General Business Law § 771 (1) (b), which requires that a home improvement contract include, among other things, provisions as to “[t]he approximate dates, or estimated dates, when the work will begin and be substantially completed, including a statement of any contingencies that would materially change the approximate or estimated completion date.” Inasmuch as the contract failed to include these statutorily required provisions, we find that Supreme Court properly dismissed plaintiff’s breach of contract claim as “a contractor cannot enforce a contract that fails to comply with General Business Law § 771” … . …

The credible testimony at trial established that the work performed by plaintiff was deficient … .

“[T]he proper measure of damages for breach of a construction contract is the cost to either repair the defective construction or complete the contemplated construction” … . Lapenna Contr., Ltd. v Mullen, 2020 NY Slip Op 06183, Third Dept 10-29-20

 

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EVEN IF PLAINTIFF BANK DID NOT SATISFY THE GOOD CAUSE STANDARD FOR AN EXTENSION OF TIME TO SERVE DEFENDANT IN THIS FORECLOSURE ACTION, PLAINTIFF WAS ENTITLED TO AN EXTENSION IN THE INTEREST OF JUSTICE PURSUANT TO CPLR 306-b (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of the complaint in the interest of justice should have been granted. The Third Department noted that defendant had waived the statute of limitations defense by not asserting it in an answer or a motion to dismiss and Supreme Court should not have cancelled the mortgage because defendant did not request that relief:

… [D]efendant contends … that her default was properly vacated due to lack of personal jurisdiction. Plaintiff does not raise any argument as to whether service was properly effectuated upon defendant or whether a traverse hearing should have been granted. … Plaintiff instead argues that it was entitled to an extension of time under CPLR 306-b to cure any service defects.

To that end, a plaintiff may be granted an extension of time to serve process upon a defendant “upon good cause shown or in the interest of justice” … . Even if we agreed with defendant that plaintiff failed to satisfy the good cause standard of CPLR 306-b, we find that plaintiff established its entitlement to an extension of time in the interest of justice. “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” … . The record discloses that, approximately one month after commencing this action, plaintiff made numerous attempts to serve defendant at the address provided on the mortgage documents. Plaintiff likewise cross-moved for an extension of time to cure any service defects approximately one month after defendant raised the issue of improper service. Furthermore, defendant does not argue, nor does the record indicate, that she would suffer any prejudice if an extension of time was granted. In view of the foregoing, and taking into account that plaintiff demonstrated the merits of its claim, plaintiff’s cross motion, to the extent that it sought an extension of time to serve process in the interest of justice, should have been granted … . U.S. Bank Natl. Assn. v Kaufman, 2020 NY Slip Op 06184, Third Dept 10-29-20

 

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PETITIONER, THE OWNER OF A LEASED CAR DAMAGED IN AN ACCIDENT, SOUGHT A DECLARATION THAT THE RESPONDENT REPAIR SHOP’S GARAGEKEEPER’S LIEN WAS NULL AND VOID ALLEGING IT DID NOT AUTHORIZE THE REPAIR; ALTHOUGH THE NOTICE OF THE SALE TO PAY OFF THE LIEN DID NOT COMPLY WITH THE LIEN LAW, THE PETITION SHOULD NOT HAVE BEEN GRANTED BASED UPON EVIDENCE SUBMITTED IN SURREPLY (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the petition, brought by the owner of a leased vehicle damaged in an accident, seeking a declaration that the respondent repair shop’s garagekeeper’s lien was null and void because it did not authorize the repair, should not have been granted. Although the notice of the sale to pay off the lien did not comply with the Lien Law, evidence submitted by the petitioner in suureply should not have been considered. Therefore the petition should not have been granted on the merits and respondent repair shop should have been allowed to submit an answer:

Accepting that respondent attempted “with due diligence” to personally serve the notice upon petitioners within the county where the lien arose, however, the notice was not sent via “certified mail, return receipt requested, and by first-class mail” as required to accomplish service under Lien Law § 201 … . Those service requirements are meant “to insure that [owners] have an adequate opportunity to reclaim their vehicles” … and, inasmuch as a garagekeeper’s lien is a statutory creation in derogation of common law, the failure to comply with them renders service defective … . Accordingly, in view of respondent’s failure to serve the notice in the manner required by the Lien Law, the time in which to commence this proceeding challenging the lien never began to run … . …

Supreme Court did abuse its discretion, however, in rebuffing respondent’s request to serve an answer and instead granting the petition on the merits. There was nothing to show that respondent was not a registered repair shop during the relevant period, and respondent asked petitioners to review a vehicle lease agreement that it believed conferred actual authority upon [the lessee] to authorize repairs on [petitioner’s] behalf … .  Petitioners instead provided that agreement for the first time in their surreply papers, a belated attempt to introduce new factual information to which respondent could not respond and that should have been rejected … . Matter of Daimler Trust v R&W Auto Body, Inc., 2020 NY Slip Op 06187, Third Dept 10-29-20

 

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PETITION SEEKING TRANSFER OF REAL PROPERTY FROM DECEDENT TO PETITIONER BY REFORMATION OF THE DEED OR A CONSTRUCTIVE TRUST, AS WELL AS THE DISTRIBUTION OF TRUST ASSETS TO DECEDENT’S GRANDCHILDREN, AS OPPOSED TO DECEDENT’S SURVIVING DESCENDANTS, PROPERLY DENIED (THIRD DEPT).

The Third Department determined Surrogate’s Court properly denied the petition which sought proceeds from the sale of real property in decedent’s name and a distribution from a trust for the educational expenses for decedent’s grandchildren:

According to the petition, petitioner had contributed funds to purchase the lots and paid all expenses associated therewith. Petitioner requested either reformation of the deeds or the imposition of a constructive trust. In the second proceeding, petitioner sought a decree authorizing a distribution from decedent’s testamentary trust to pay for the educational expenses of the grandchildren. …

[Re: reformation of the deed for the real property,] [g]iven that petitioner did not establish, or even allege, that there was fraud involved, she failed to establish unilateral mistake where the showing of fraud is required … . To claim that there was mutual mistake, it must be established that “the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . Here, petitioner failed to show that there was an oral agreement that the vacant lots would be owned as tenants by the entirety … . …

[Re: a constructive trust for the real property,] … although there was a confidential relationship between petitioner and decedent due to their marital status, the record does not reveal that there was a promise that the two would jointly own the four vacant lots, that petitioner transferred monies to purchase the properties in reliance of that promise or that decedent’s enrichment was unjust as a result … . …

Petitioner asserts that the word “use” supports her claim that decedent intended to provide the trustees with broad discretion that allows the distribution of the trust to be used for the grandchildren’s educational expenses. However, when gleaning decedent’s intent from the entirety of the will, the word “use” does not give unbridled discretion to the trustees to distribute the income for such purpose. Rather, when considering that the will provides that decedent’s descendants who survive petitioner receive the remainder of the trust at the time of her death, it may be gleaned that it was not decedent’s intent that the trust provide for the grandchildren’s educational expenses during petitioner’s lifetime … . Matter of Husisian, 2020 NY Slip Op 06188, Third Dept 10-29-20

 

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CLAIMANT’S FAILURE TO SUBMIT MEDICAL RECORDS TO THE EMPLOYER PRIOR TO THE HEARING REQUIRED PRECLUSION OF THE RECORDS; HOWEVER THE CASE SHOULD NOT HAVE BEEN CLOSED; CLAIMANT MAY REMEDY THE OMISSION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the case should not have been closed because claimant failed to provide a copy of the medical records to the employer before the hearing, but rather the case should have been marked “no further action” which allows claimant to submit the medical records:

Pursuant to 12 NYCRR 300.2 (d) (4) (iv), copies of written reports of medical experts made based on a records review to be used for reference at a hearing must be filed with the Board and submitted to all other parties three days prior to the hearing. It is uncontested that the employer was not provided a copy of the report pursuant to the regulation and, therefore, the report was properly precluded … . …

As to the Board’s decision to disallow the claim and close the case after rescinding the WCLJ’s finding of prima facie medical evidence, it should be noted that if the WCLJ [Workers’ Compensation Law Judge], in the first instance, had found that claimant had not proffered prima facie medical evidence, the WCLJ would have been required to have marked the case as “no further action” … . Claimant then would have been provided an opportunity to “submit additional information on an amended or other medical report, upon which submission the case shall be scheduled for another pre-hearing conference” … . Thus, under these circumstances, where there has been no finding by the WCLJ as to the establishment or disallowance of the claim, the Board’s decision to find no admissible evidence of a causally-related death and close the case based solely upon the rescission of the WCLJ’s finding of prima facie medical evidence was improper. Rather, the matter should now be marked as no further action, thereby providing claimant with an opportunity to proffer additional information to satisfy her burden of submitting prima facie medical evidence … . Matter of Barton v Consolidated Edison Co. of New York, Inc., 2020 NY Slip Op 06190, Third Dept 10-29-20

 

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IN A VEHICULAR MANSLAUGHTER CASE, THE STANDARD OF PROOF OF IMPAIRMENT FROM MARIJUANA IS THE SAME AS THE STANDARD OF PROOF OF IMPAIRMENT FROM ALCOHOL (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Lynch, affirmed defendant’s conviction stemming from a collision with a motorcycle at a time when defendant was impaired by marijuana (THC). The decision, which lays out the law of vehicular manslaughter, carefully goes through evidence of impairment and causation. The opinion is too detailed to be fairly summarized here. It is worth noting that, on the issue of impairment, the opinion indicates a prior decision describing a different standard of proof of impairment for marijuana, as opposed to alcohol, should no longer be followed. The same standard of proof of impairment is applied to the drugs enumerated in Public Health Law 3306, including marijuana, as is applied to alcohol:

… [T]he degree of impairment necessary to convict a motorist of vehicular manslaughter in the second degree based upon a death that was caused while such motorist was under the influence of one of the drugs enumerated in Public Health Law § 3306 (which includes marihuana) is the same degree of impairment as would be necessary to sustain a conviction of driving while intoxicated by alcohol — namely, the People must prove that such motorist was “incapable of employing the physical and mental abilities which he [or she was] expected to possess in order to operate a vehicle as a reasonable and prudent driver” … . To the extent that this Court’s decision in People v Rossi (163 AD2d 660, 662 [1990], lv denied 76 NY2d 943 [1990]) can be read as holding that a conviction of vehicular manslaughter in second degree based upon a violation of Vehicle and Traffic Law § 1192 (4) only requires proof that the motorist was impaired “to any extent,” it should no longer be followed. People v Caden N., 2020 NY Slip Op 05979, Third Dept 10-22-20

 

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RESPONDENT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE JULY 2015 MENTAL HYGIENE ARTICLE 10 TRIAL; COUNSEL WAS INEFFECTIVE IN NOT REQUESTING A FRYE HEARING ON THE VALIDITY OF THE OSPD DIAGNOSIS; MATTER REMITTED FOR A FRYE HEARING BASED UPON WHAT WAS KNOWN ABOUT THE DIAGNOSIS AT THE TIME OF THE 2015 TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, remitting the matter for a Frye hearing, determined respondent was deprived of effective assistance of counsel in the July 2015 Mental Hygiene Article 10 trial because counsel did not request a Frye hearing on the validity of the “other specific paraphilic disorder (nonconsent)” (OSPD) diagnosis. It was not until just after the July 2015 trial that courts recognized it was an abuse of discretion to deny a Frye hearing regarding OSPD, but there was a substantial amount of literature calling the diagnosis into question at the time of the trial:

When evaluating whether counsel’s failure to request a pretrial Frye hearing in this case constituted ineffective assistance, counsel’s posttrial motion practice sheds light on what counsel knew, or should have known, prior to trial about the acceptance of paraphilic disorders. Counsel filed a posttrial motion, apparently at respondent’s urging, to preclude from the dispositional hearing evidence of OSPD (nonconsent) and other paraphilic disorders by any name. In his motion papers, counsel not only cited to several of the foregoing trial court cases that had been recently issued, but also annexed several scientific articles from 2014, 2011 and 2008 that highlight the controversial nature and forensic misuse of paraphilic disorders generally or outright reject PNOS (nonconsent) or OSPD (nonconsent) as diagnoses reliable enough for the courtroom. At least one of these articles, as well as counsel’s cross-examination of [an expert] at trial, reveal that counsel was at least generally aware that defined nonconsent paraphilias or paraphilic disorders had been rejected for inclusion in various versions of the Diagnostic and Statistical Manual … . * * *

… [H]ad counsel been successful at a pretrial Frye hearing in precluding consideration of OSPD (nonconsent), it is possible that respondent could have had the petition dismissed before trial … . … In other words, counsel “had everything to gain and nothing to lose” by challenging OSPD (nonconsent) in a Frye hearing … . … [T]his single failing deprived respondent of the effective assistance of counsel … . Accordingly, we hold the appeal … in abeyance and remit the matter to Supreme Court for a posttrial Frye hearing to consider the reliability of OSPD (nonconsent) based on the information that was available prior to the July 2015 trial, and to report back on its findings … . Matter of State of New York v Kenneth II, 2020 NY Slip Op 05980, Third Dept 10-22-20

 

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THE 2008 FORECLOSURE COMPLAINT WAS SERVED ON A DECEASED DEFENDANT AND WAS THEREFORE A NULLITY WHICH DID NOT TRIGGER THE SIX-YEAR STATUTE OF LIMITATIONS; THE INSTANT FORECLOSURE ACTION, THEREFORE, IS NOT TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the foreclosure action was not time-barred. Although a foreclosure complaint was served in 2008, it named a deceased defendant and was therefore a nullity which did not accelerate the debt and start the statute of limitations running:

Plaintiff contends that Supreme Court erred in dismissing the action as untimely because the 2008 action was commenced only against the decedent borrower and was thus a legal nullity. We agree. “The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage” … . Accordingly, as a general rule, the commencement of a mortgage foreclosure action triggers the statute of limitations … . As pertinent here, however, “[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent’s estate” … . Greenpoint [Mortgage Funding] served but did not substitute the executor of decedent’s estate as a party in the 2008 action (see CPLR 1015 [a]). As such, the court lacked jurisdiction over the 2008 action, and that action was a legal nullity from its inception … . It follows that the 2008 action, a legal nullity, did not trigger the statute of limitations. Since this action was commenced within six years of the 2013 acceleration letter, the action was timely. U.S. Bank Natl. Assn. v Stewart, 2020 NY Slip Op 05982, Third Dept 10-22-20

 

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PLAINTIFF WAS ENTITLED TO THE REFORMATION OF THE INSURANCE POLICY TO NAME HIM AS MORTGAGEE; ALL PARTIES AGREED THEY INTENDED TO SO NAME THE PLAINTIFF AND THE FAILURE TO DO SO WAS THE RESULT OF A MISTAKE; PLAINTIFF WAS ENTITLED TO PAYMENT OF THE FIRE-DAMAGE PROCEEDS IRRESPECTIVE OF THE PROPERTY OWNER’S ACTS OR NEGLECT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff was entitled to the reformation of an insurance policy and to the payment of the fire-damage proceeds. Through error plaintiff was never named as the mortgagee on the policy:

Plaintiff asserts that reformation of the property policy to name him as the mortgagee is appropriate because the undisputed evidence demonstrates that [all the parties] intended to have him so named and reached an oral agreement to that effect, but that, without their knowledge and because of mutual mistake, the property policy did not embody that agreement. In support of this claim, plaintiff submitted the uncontradicted testimony of [the buyer] and the wife that they were aware of the requirement to have plaintiff named as a mortgagee on the property policy as required by the mortgages and intended to comply with it, that the wife asked [the insurance agent] to make the change, and that she and [the buyer] believed afterward that the change had been made and that plaintiff had become a mortgagee on the property policy. * * *

… [W]e find that the property policy should be reformed to name plaintiff as mortgagee … . Plaintiff’s resulting identification as the mortgagee “creates an independent insurance of [his] interest just as if he had received a separate policy from the company but without any inconsistent or repugnant conditions imposed upon the owner and free from invalidation by the latter’s act or neglect” … . Imrie v Ratto, 2020 NY Slip Op 05986, Third Dept 10-22-20

 

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UNDER THE CIRCUMSTANCES, A LINCOLN HEARING WILL PROVIDE INFORMATION PERTINENT TO FATHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, remitted the matter to determine whether a change in circumstance warranted a modification of the child custody order. The order did not address where the child should attend school after eighth grade and father sought an modified order allowing the child to attend a public high school and expanding his parenting time. Family Court refused to use information learned in a Lincoln hearing in connection with the father’s burden to show a change in circumstances. The Third Department remitted the matter noting that a Lincoln hearing, under the circumstances, would provide the court with pertinent information:

… [T]he father established a change in circumstances requiring a thorough best interests analysis. To that end, it is undisputed that there is no current order governing where the child is to attend school. Also, the father’s uncontested testimony established that the father and the mother cannot reach an agreement as to where the child should attend school, thus requiring judicial intervention … . …

Family Court erred in denying the father’s motion requesting a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. “Although a child’s wishes can support the finding of a change in circumstances, they are but one factor and are not determinative” … . Although “[t]he decision whether to conduct such a hearing is discretionary, . . . it is ‘often the preferable course’ to conduct one” … . Here, given that the child was 14 years old at the time of the fact-finding hearing and had expressed a preference to attend public school, that this preference was one of the changed circumstances alleged by the father and that the attorney for the child joined in the father’s request for the Lincoln hearing, a Lincoln hearing “would have provided the court with significant pieces of information it needed to make the soundest possible decision” … . Matter of Edwin Z. v Courtney AA., 2020 NY Slip Op 05987, Third Dept 10-22-20

 

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