VACATION?

But with a laptop and phone, I can take a semi-vacation. Posting returns after Labor Day. Enjoy the holiday!

FOR THE COMMUNITY

IS LANDLORD LIABLE FOR 3RD PARTY CRIMINAL ACT

Muzafarov v Casallas-Gonzalez ,2018 NY Slip Op 05771, Decided on August 15, 2018, Appellate Division, Second Department:

"The plaintiff Anvar Muzafarov (hereinafter the injured plaintiff), a patron of a movie theater owned by the defendant Regal Cinemas, Inc. (hereinafter Regal), allegedly was injured in the parking lot of the theater. The injured plaintiff allegedly was punched in the face by the defendant Eduardo Casallas-Gonzalez (hereinafter Casallas-Gonzalez) during an argument over a parking spot. The injured plaintiff and his wife, Svetlana Tokareva, suing derivatively (hereinafter together the plaintiffs), commenced this personal injury action alleging, inter alia, that Regal breached its duty to the injured plaintiff by failing to provide adequate security, and that the breach was a proximate cause of his injuries. After the completion of discovery, Regal moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion.

A landlord is under a duty to take minimal precautions to protect its tenants and invitees from foreseeable harm, "including the harm caused by a third party's foreseeable criminal conduct on the premises" (Johnson v City of New York, 7 AD3d 577, 577; see Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878; Granata v City of White Plains, 120 AD3d 1187, 1189). "To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" (Karim v 89th Jamaica Realty Co., L.P., 127 AD3d 1030, 1030; see Jacqueline S. v City of New York, 81 NY2d 288, 295). Knowledge of ambient neighborhood crime, standing alone, is insufficient to establish foreseeability (see Novikova [*2]v Greenbriar Owners Corp., 258 AD2d 149, 153).

Here, Regal established its prima facie entitlement to judgment as a matter of law through the submission of evidence demonstrating that the physical altercation between the injured plaintiff and Casallas-Gonzalez was a sudden and unforeseeable event that could not have been anticipated or prevented by the provision of greater security measures (see Roberts v Nostrand Hillel Food, Inc., 90 AD3d 1011; Katekis v Naut, Inc., 60 AD3d 817, 818). Regal also established prima facie that the alleged criminal acts committed by Casallas-Gonzalez were not reasonably predictable (see Karim v 89th Jamaica Realty Co., L.P., 127 AD3d at 1030). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)."

MORTGAGE FORECLOSURE - STATUTE OF LIMITATIONS AND DE-ACCELERATE DEFENSE

In Milone v US Bank Natl. Assn., 2018 NY Slip Op 05760, Decided on August 15, 2018, Appellate Division, Second Department, the court held that summary judgment could not be granted for either party in an action pursuant to RPAPL 1501(4) to cancel and discharge a mortgage and note. As noted by the court: "The instant appeal provides us with an occasion to address the timeliness and required proofs for the valid de-acceleration of note obligations underlying residential mortgage foreclosure actions."

The full decision can be viewed here: Milone v US Bank Natl. Assn. 2018 NY Slip Op 05760 Decided on August 15, 2018 Appellate Division, Second Department

FORECLOSURE NOT BREACH OF CONTRACT

Russell v Pisana, 2018 NY Slip Op 05789, Decided on August 15, 2018, Appellate Division, Second Department:

"On September 6, 2013, the plaintiffs and the defendant entered into a contract for the defendant to purchase real property located in Valley Cottage from the plaintiffs for the purchase price of $625,000. The defendant paid a down payment in the sum of $160,000, and the contract provided for the balance of the purchase price to be financed by the plaintiffs over 30 years, with the defendant obligated to make monthly payments of principal and interest in the sum of $2,219.98, plus one-twelfth of the yearly property insurance and taxes, for a total monthly payment of $4,511.93. Upon receipt of all payments required under the contract, the plaintiffs were to furnish the defendant with a warranty deed. A rider to the contract contained a provision providing that in the event the defendant defaulted in making payments under the contract and failed to cure, and that said default resulted in the plaintiffs' inability to pay an existing mortgage on the property, the defendant forfeited all monies paid as liquidated damages, the contract was deemed null and void, and the premises were to be vacated in good condition.

The defendant took possession of the property on December 1, 2013. In September 2015, the plaintiffs, who had retired and moved to Florida, became aware that the defendant was allegedly using the premises illegally as a marijuana grow farm. According to the plaintiffs, there was extensive damage to the premises that caused them to incur expenses. In December 2015, the plaintiffs commenced this action, inter alia, to recover damages for breach of contract.

In June 2016, the defendant ceased making the monthly payments pursuant to the contract. A notice of default dated July 12, 2016, was sent to the defendant. The defendant failed to timely cure his default. Thereafter, the plaintiffs moved for summary judgment on the issue of liability on the breach of contract cause of action based on the default provision in the rider. The [*2]Supreme Court granted the plaintiffs' motion, and the defendant appeals.

"The execution of a contract for the purchase of real estate and the making of a partial payment gives the contract vendee equitable title to the property" (Carnavalla v Ferraro , 281 AD2d 443, 443; see Heritage Art Galleries v Raia , 173 AD2d 441, 441; Bean v Walker , 95 AD2d 70, 72). "[T]he vendor merely holds the legal title in trust for the vendee, subject to the vendor's equitable lien for the payment of the purchase price in accordance with the terms of the contract" (Bean v Walker , 95 AD2d at 74). Accordingly, the vendee under a land sale contract has acquired an interest in the property that must be extinguished before the vendor can resume possession, notwithstanding whether a provision in the contract provides that in the event of the vendee's uncured default in payment, the vendor has the right to declare the contract terminated and repossess the premises (see id .). A vendor may not enforce his rights by an action in ejectment, but must instead proceed to foreclose the vendee's equitable title or bring an action at law for the purchase price (see id .).

The defendant, having executed a contract for the purchase of property from the plaintiffs, and having made substantial payments to the plaintiffs pursuant to the contract, held equitable title to the property (see Carnavalla v Ferraro , 281 AD2d at 443; Heritage Art Galleries v Raia , 173 AD2d at 441; Bean v Walker , 95 AD2d at 72). Under these circumstances, upon the defendant's default in making payments under the contract, the plaintiffs could not seek relief pursuant to the provision of the rider that provided for the contract to be deemed null and void, the premises vacated, and the defendant to forfeit all monies paid as liquidated damages. The plaintiffs were required to proceed to foreclose the defendant's equitable title or bring an action at law for the purchase price (see Bean v Walker , 95 AD2d at 74)."

CONTESTING SUBSTITUTED SERVICE

US Bank, N.A. v Daskal, 2018 NY Slip Op 05792, Decided on August 15, 2018, Appellate Division, Second Department:

"Schwartz's contention that he was never properly served with process is without merit. "A process server's affidavit of service gives rise to a presumption of proper service" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776). "A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service" (id. at 776-777; see HSBC Bank USA v Whitter, 159 AD3d 942). "If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777).

The process server averred in his affidavit of service that on July 14, 2008, at the subject premises, he served the summons and complaint on Schwartz by delivering a copy thereof to a person of suitable age and discretion, namely, "family member" Bracha Rosenbaum, and that on July 16, 2008, he mailed copies of the documents to Schwartz at the same address. These statements in the affidavit of service give rise to a presumption that Schwartz was properly served with process (see CPLR 308[2]).

Although Schwartz denied ever having resided at the subject premises, he failed to support his assertion (see U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155). Moreover, he did not specifically deny that Rosenbaum was a family member and a person of suitable age and discretion (see HSBC Bank USA v Whitter, 159 AD3d 942). Accordingly, Schwartz failed to rebut the presumption of proper service (see Bank of N.Y. v Espejo, 92 AD3d 707; 96 Pierrepont v Mauro, 304 AD2d 631)."

MORTGAGE FORECLOSURE - FAILURE TO SEEK A DEFAULT

Federal Natl. Mtge. Assn. v Heilpern, 2018 NY Slip Op 05752. Decided on August 15, 2018, Appellate Division, Second Department:

"Yermi E. Heilpern executed a note dated April 2, 2004, in favor of Flagstar Bank, FSB, which was secured by a mortgage on residential property in Spring Valley. By assignment [*2]dated July 15, 2009, the mortgage was assigned to MetLife Home Loans, A Division of MetLife Bank, N.A. (hereinafter MetLife). On August 19, 2009, MetLife commenced the instant action to foreclose the mortgage against Yermi E. Heilpern and Laya K. Heilpern (hereinafter together the defendants), among others. The defendants failed to answer the complaint. Thereafter, MetLife assigned the mortgage to Federal National Mortgage Association (hereinafter the plaintiff), who was substituted as the plaintiff.

In April 2013, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. By order dated September 6, 2013, the Supreme Court granted the motion and referred the action to a referee to compute the amount due and owing to the plaintiff. In October 2013, the plaintiff moved for a judgment of foreclosure and sale. The defendants cross-moved, inter alia, to vacate the order of reference and to dismiss the complaint insofar as asserted against them as abandoned pursuant to CPLR 3215(c), or, in the alternative, for a settlement conference pursuant to CPLR 3408. By order dated May 1, 2014, the Supreme Court granted the motion and denied the cross motion. Thereafter, the court issued a judgment dated May 13, 2014, directing foreclosure of the mortgage and sale of the property. The defendants appeal.

The plaintiff failed to seek a default judgment on the unanswered complaint within one year after the default, as required by CPLR 3215(c) (see Giglio v NTIMP, Inc., 86 AD3d 301, 307). To avoid dismissal of the action as abandoned pursuant to CPLR 3215(c), the plaintiff was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious cause of action (see Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 846; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852; Ohio Sav. Bank v Decaudin, 129 AD3d 925, 926). The plaintiff failed to offer a reasonable excuse for its delay in seeking a default judgment. Since the plaintiff failed to proffer a reasonable excuse for its delay in seeking a default judgment, this Court need not consider whether it had a potentially meritorious cause of action (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852).

A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance (see HSBC Bank USA, N.A. v Grella, 145 AD3d 669; Myers v Slutsky, 139 AD2d 709, 711). Here, the defendants did not appear in the action, either formally or informally.?

CONVERTING GARAGE TO APARTMENT FOR ELDERLY MOM - NOT ALLOWED

Matter of Gray v Village of Patchogue, 2018 NY Slip Op 05677, Decided on August 8, 2018, Appellate Division, Second Department:

"The petitioner filed an application with the Village of Patchogue for a use variance that would allow her to convert her two-car garage into living space as an accessory apartment for her elderly mother. Following a hearing, the appellant, the Village of Patchogue Zoning Board of Appeals (hereinafter the ZBA), denied the application, noting that the Village's General Code did not permit accessory apartments in the petitioner's zoning district and that the petitioner had not satisfied the requirements for a use variance pursuant to Village Law § 7-712-b(2). The petitioner commenced this proceeding pursuant to CPLR article 78 to review the ZBA's determination. The Supreme Court granted the petition and remitted the matter to the ZBA with a direction to grant the application for a use variance. Based on a ZBA member's comment at a hearing on the application that "[n]ot many [such applications] have been granted at all," the court found that the ZBA had granted such previous applications and that administrative due process prohibited inconsistent treatment of similarly situated parties. The ZBA appeals.

To obtain a use variance, an applicant must demonstrate to the zoning board of appeals that "applicable zoning regulations and restrictions have caused unnecessary hardship" (Village Law § 7-712-b[2][b]). This imposes a "heavy burden" on the applicant (Matter of Colin Realty Co., LLC v Town of N. Hempstead, 24 NY3d 96, 102), who is required to establish: "[F]or each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created" (Village Law § 7-712-b[2][b]).

"Under a zoning ordinance which authorizes interpretation of its requirements by a board of appeals, such as Village of Patchogue Code § 93-47(B), specific application of a term of the ordinance to a particular property is governed by that body's interpretation, unless unreasonable or irrational . . . [J]udicial review is generally limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion" (Matter of Kennedy v Zoning Bd. of Appeals of Vil. of Patchogue, 57 AD3d 546, 547 [internal quotation marks omitted]).

The petitioner failed to make the requisite showing of "unnecessary hardship" for a use variance (see Matter of DePaola v Zoning Bd. of Appeals of Vil. of Dobbs Ferry, 226 AD2d 371, 373). Additionally, there is no evidence that the ZBA failed to adhere to any prior precedent of granting use variance applications in similar situations (see generally Matter of Fortunato v Town of Hempstead Bd. of Appeals, 134 AD3d 825, 826). Accordingly, the ZBA determination had a rational basis, was not arbitrary and capricious, and was supported by substantial evidence. Therefore, the Supreme Court should have denied the petition."

SHOULD THE FIRM BE DISQUALIFIED?

Matter of Kopet, 2018 NY Slip Op 05678, Decided on August 8, 2018, Appellate Division, Second Department:

"Howard Kopet (hereinafter the decedent) died domiciled in Nassau County on February 18, 2014, at the age of 90. He was survived by his wife of 40 years, Sandra Kopet (hereinafter Sandra), and two children from a previous marriage, Dana Kopet and Stacy Kopet-Heimlich (hereinafter together the decedent's children). Sandra suffers from Alzheimer's and is currently incapacitated. Sandra's daughter from a previous marriage, Ellen Werther (hereinafter the petitioner), holds a power of attorney for Sandra. The decedent's will nominated the appellant, David Gerstein, inter alia, as an executor of the decedent's estate and trustee of testamentary and marital trusts. The appellant is a member of the law firm of Eaton & Van Winkle, LLP.

By petitions dated November 6, 2014, and December 18, 2014, the petitioner commenced two proceedings in her capacity as Sandra's attorney-in-fact, inter alia, to remove the appellant as executor and trustee of the decedent's estate (hereinafter together the removal proceedings), respectively. The petitions alleged, in sum, that the appellant and the law firm had previously represented Sandra in connection with her own estate planning and in joint estate planning with the decedent, among other matters, and that the appellant had acted contrary to Sandra's interests in his administration of the decedent's estate. The appellant appeared in the removal proceedings, represented by Eaton & Van Winkle, LLP. While the removal proceedings were pending, the decedent's children filed a petition to bar Sandra from electing against the decedent's estate pursuant to the provisions of a prenuptial agreement between Sandra and the decedent that had been drafted by the appellant (hereinafter the election proceeding).

The petitioner thereafter separately moved in the removal proceedings and in the election proceeding to disqualify the Eaton & Van Winkle, LLP, and its members Nancy Stone and Robert Churchill (hereinafter collectively the law firm) from representing the appellant in each of the three proceedings on the basis of the law firm's prior representation of Sandra. By order dated December 28, 2015, the Surrogate's Court determined that an appearance of impropriety existed and granted the motions. We reverse insofar as appealed from.

" A party seeking disqualification of it[s] adversary's counsel based on counsel's purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse'" (Deerin v Ocean Rich Foods, LLC, 158 AD3d 603, 607, quoting Gjoni v Swan Club, Inc., 134 AD3d 896, 897; see former Rules of Professional Conduct [22 NYCRR 1200.00] rule 1.10; Moray v UFS Indus., Inc., 156 AD3d 781). "When the moving party is able to demonstrate each of these factors, an irrebuttable presumption of disqualification follows" (Moray v UFS Industries, Inc., 156 AD3d at 782). " A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted'" (Deerin v Ocean Rich Foods, LLC, 603 AD3d at 607, quoting Kelleher v Adams, 148 AD3d 692, 692; see Matter of 148 S. Emerson Parnters, LLC v 128 S. Emerson Assoc., LLC, 157 AD3d 889; Hele Asset, LLC v S.E.E. Realty Assoc., 106 AD3d 692, 693).

Here, although the law firm had a prior attorney-client relationship with Sandra in connection with her own estate planning, which may have been intertwined somewhat with that of the decedent, the record does not reveal that the law firm's prior representation of Sandra is substantially related or materially adverse to the removal proceedings. In the removal proceedings, Sandra's estate is not being administered or litigated, and there is nothing to suggest that any confidences with Sandra might be breached by the law firm's representation of the appellant in his capacity as executor and trustee of the decedent's estate (see Matter of Homola, 234 AD2d 295). Accordingly, the Surrogate's Court improvidently exercised its discretion in disqualifying the law firm in the removal proceedings.

In addition, the Surrogate's Court should have denied as academic the petitioner's motion to disqualify the law firm from acting as counsel to the appellant in the election proceeding. Although the appellant's prior law firm drafted the prenuptial agreement relied upon by the decedent's children, neither the appellant nor his present law firm are acting as counsel to any party in that proceeding (see e.g. Cadet-Duval v Gursim Holding, Inc., 147 AD3d 718, 719)."

REASONABLE RESTRICTIVE COVENANTS IN EMPLOYMENT AGREEMENTS

Long Is. Minimally Invasive Surgery, P.C. v St. John's Episcopal Hosp., 2018 NY Slip Op 05674, Decided on August 8, 2018, Appellate Division, Second Department:

"Agreements restricting an individual's right to work or compete are not favored and thus are strictly construed" (Goodman v New York Oncology Hematology, P.C., 101 AD3d 1524, 1526; see Morris v Schroder Capital Mgt. Intl., 7 NY3d 616, 620; BDO Seidman v Hirshberg, 93 NY2d 382, 389). " [A] restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer's legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee'" (BDO Seidman v Hirshberg, 93 NY2d at 389, quoting Reed, Roberts Assocs. v Strauman, 40 NY2d 303, 307). The determination of whether a restrictive covenant is reasonable involves the application of a three-pronged test. "A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public" (BDO Seidman v Hirshberg, 93 NY2d at 388-389 [emphasis in original]; see Ricca v Ouzounian, 51 AD3d 997, 998). The "violation of any prong renders the covenant invalid" (BDO Seidman v Hirshberg, 93 NY2d at 389). "With agreements not to compete between professionals . . . [courts] have given greater weight to the interests of the employer in restricting competition within a confined geographical area" (id.). That said, "the application of the test of reasonableness of employee restrictive covenants focuses on the particular facts and circumstances giving context to the agreement" (id. at 390). "The rationale for the differential application of the common-law rule of reasonableness . . . was that professionals are deemed to provide unique or extraordinary'" services (id. at 389, quoting Reed, Roberts Assocs. v Strauman, 40 NY2d at 308).

Here, the defendants made a prima facie showing that the provision of the covenant prohibiting Andrade for a period of two years from practicing surgery of any kind, within a 10-mile radius of all of the plaintiff's offices and affiliated hospitals, even those at which he had never worked, was geographically unreasonable, because it effectively barred him from performing surgery, his chosen field of medicine, in the New York metropolitan area (see BDO Seidman v Hirshberg, 93 NY2d at 390-391). In opposition, the plaintiff failed to raise a triable issue of fact as to whether imposing such a broad geographical restriction was necessary to protect its interests.

Contrary to the plaintiff's contention, the Supreme Court did not err in declining to modify the covenant rather than invalidating it. The determination of whether an overly broad restrictive covenant should be enforced to the extent necessary to protect an employer's legitimate interest involves "a case specific analysis, focusing on the conduct of the employer in imposing the terms of the agreement" (id. at 394). Partial enforcement may be justified if an employer demonstrates, in addition to having a legitimate business interest, "an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct" (id.). "Factors weighing against partial enforcement are the imposition of the covenant in connection with hiring or continued employment—as opposed to, for example, imposition in connection with a promotion to a position of responsibility and trust—the existence of coercion or a general plan of the employer to forestall competition, and the employer's knowledge that the covenant was overly broad" (Scott, Stackrow & Co., C.P.A.'s, P.C. v Skavina, 9 AD3d 805, 807-08; see BDO Seidman v Hirshberg, 93 NY2d at 395). Application of the factors set forth in BDO Seidman militates against partial enforcement here. The plaintiff has not demonstrated, or even argued, an absence of anticompetitive misconduct on its part, asserting instead that because the restrictive covenant can be partially enforced, it should be. The fact that the covenant is clearly overbroad casts doubt on the plaintiff's good faith in imposing it (see Brown & Brown, 158 AD3d 1148). Moreover, it is undisputed that the plaintiff, from a superior bargaining position, required Andrade to sign the employment agreement as a prerequisite to being hired, and it refused to negotiate the covenant."

STATUTE OF LIMITATIONS DEFENSE CANNOT BE RAISED BY COURT

352 Legion Funding Assoc. v 348 Riverdale, LLC, 2018 NY Slip Op 05662 Decided on August 8, 2018, Appellate Division, Second Department:

"In April 2007, the defendant 348 Riverdale, LLC (hereinafter the defendant), borrowed the sum of $250,000 from the plaintiff. As security for the loan, the defendant executed and delivered to the plaintiff a note and mortgage on property located in Brooklyn. The terms of the loan provided that it matured on May 1, 2008. However, by a letter dated April 2, 2008, the maturity date was purportedly extended to May 1, 2010. The defendant continued making payments on the loan until April 2009, and thereafter defaulted.

The plaintiff commenced this action to foreclose the mortgage by filing a summons and complaint on December 5, 2014. The defendant failed to appear, answer, or make any motion asserting any defense to the complaint. Thereafter, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference to compute the sum due on the note. The defendant did not oppose the motion. By order dated March 16, 2016, the Supreme Court denied the plaintiff's motion, and sua sponte directed the dismissal of the complaint on the ground that the plaintiff commenced the action after the statute of limitations had expired. The court reasoned that the letter which extended the maturity date of the loan was unenforceable because it was not signed by the [*2]defendant, and that the statute of limitations began to run on May 1, 2008, the original maturity date of the mortgage. The plaintiff moved, inter alia, to renew its prior motion. By order dated January 5, 2017, the court denied the motion. The plaintiff appeals from both orders.

We agree with the plaintiff that the Supreme Court erred in sua sponte raising the affirmative defense of the statute of limitations and directing the dismissal of the complaint on that ground. The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading (see CPLR 3211[e]; Deutsche Bank Trust Co. Ams. v Cox, 110 AD3d 760, 762; Aurora Loan Servs. LLC v Dimura, 104 AD3d 796, 797; Horst v Brown, 72 AD3d 434, 436). "A court may not take judicial notice,' sua sponte, of the applicability of a statute of limitations if that defense has not been raised" (Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646, 647; see De Oleo v Charis Christian Ministries, Inc., 94 AD3d 541, 542; Horst v Brown, 72 AD3d at 436). Here, the defendant neither answered the complaint nor submitted a pre-answer motion which raised the statute of limitations defense."

BROKER COMMISSION ON COMMERCIAL LEASE

Gluck & Co. Realtors, LLC v Burger King Corp., 2018 NY Slip Op 05668, Decided on August 8, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action to recover a real estate brokerage commission, alleging that it performed brokerage services for the defendants Roger Budhu and RLRC, LLC (hereinafter RLRC), to facilitate the lease of the subject property, owned by RLRC, to a franchisee of the defendant Burger King Corporation (hereinafter Burger King). At a nonjury trial, the plaintiff's president testified that she was negotiating the terms of a lease with a broker for Burger King, which had to approve the location before the subject property could be leased to a franchisee, when Budhu, the principal of RLRC, terminated the plaintiff's services upon being asked to sign a commission agreement. RLRC subsequently entered into a lease with the defendant Hillside Foods, Inc. (hereinafter Hillside), a Burger King franchisee. Budhu asserted that the lease was negotiated by a broker other than the plaintiff.

After the trial, the Supreme Court determined that the plaintiff was entitled to recover a commission from Budhu and RLRC, and a judgment was entered in favor of the plaintiff and against Budhu and RLRC in the total sum of $55,810.08. Budhu and RLRC appeal.

The Supreme Court's determination that the plaintiff was entitled to recover a commission from Budhu and RLRC was warranted by the facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499). A real estate broker is entitled to recover a commission upon establishing that it (1) is duly licensed, (2) had a contract, express or implied, with the party to be charged with paying the commission, and (3) was the procuring cause of the transaction (see Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d 770, 773; Sutton & Edwards, Inc. v 68-60 Austin St. Realty Corp., 70 AD3d 810; Hentze-Dor Real Estate, Inc. v D'Allessio, 40 AD3d 813). There is no dispute that the plaintiff is a licensed brokerage firm. [*2]Although Budhu and RLRC contend that the plaintiff cannot recover a commission because one of its employees, who is not a licensed broker pursuant to Real Property Law § 442-d, performed brokerage services, the credible evidence established that this employee did not act as a broker.

The plaintiff established that it had an implied contract to provide brokerage services for Budhu and RLRC. The plaintiff also established that it was the procuring cause of the transaction. In order to establish that it was the procuring cause of a transaction, a "broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation" (Douglas Elliman, LLC v Silver, 136 AD3d 658, 660 [internal quotation marks omitted]; see Talk of the Town Realty v Geneve, 109 AD3d 981; Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d at 773). While the plaintiff was not involved in the negotiations leading up to the completion of the deal between RLRC and Hillside, it established that it created an amicable atmosphere in which negotiations proceeded, and that it generated a chain of circumstances that proximately led to the transaction (see Saunders Ventures, Inc. v Catcove Group, Inc., 151 AD3d 991, 994; Hentze-Dor Real Estate, Inc. v D'Allessio, 40 AD3d at 816). Even if the plaintiff were not the procuring cause of the transaction, it would still be entitled to recover a commission, as the evidence established that Budhu and RLRC terminated the plaintiff's activities in bad faith and as a mere last-minute device to escape the payment of the commission (see Saunders Ventures, Inc. v Catcove Group, Inc., 151 AD3d at 994-995; Friedland Realty v Piazza, 273 AD2d 351).

Moreover, even assuming that there was no contract, express or implied, between the parties, the plaintiff would be entitled to recover for its services in quantum meruit in order to avoid the unjust enrichment of Budhu and RLRC (see Curtis Props. Corp. v Greif Cos., 212 AD2d 259, 266). The plaintiff established that it performed services in good faith, that Budhu and RLRC accepted the services, that it expected to be compensated therefor, and the reasonable value of the services (see Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d at 772; Tesser v Allboro Equip. Co., 73 AD3d 1023, 1026)."

ARTICLE 17-A GUARDIANSHIP GRANTED AFTER AN APPEAL

Matter of Anna F., 2018 NY Slip Op 05590, Decided on August 1, 2018, Appellate Division, Second Department:

"The petitioner commenced this proceeding in August 2015, pursuant to Surrogate's Court Procedure Act article 17-A, seeking to be appointed guardian of her sister, Anna F. A hearing was held on the petition, at which the petitioner established that Anna, then 51 years old, had suffered severe intellectual disability most, if not all, of her life. Anna's primary care physician certified that Anna suffers from "cerebral palsy with profound mental retardation,"^[FN1] and is in need of 24-hour supervision, as she is not capable of feeding herself or moving about on her own. A psychological evaluation by the YAI-National Institute for People with Disabilities confirmed that Anna was "largely nonverbal" and "non-ambulatory" and that she was so cognitively limited that her intelligence could not be successfully evaluated employing traditional IQ tests. Utilizing the Bayley Scales of Infant and Toddler Development, the evaluator assessed Anna of having attained a developmental age equivalent of 4 months, 10 days.

At the hearing, the petitioner testified that her parents had cared for Anna her entire life, until 2014, when both parents died. Since that time, Anna had remained in the apartment she had lived in with her parents, and home attendants were assisting her 24 hours a day. The petitioner further testified that although she had been able to manage some of Anna's affairs, she was limited without court-authorized guardianship, and had experienced difficulty in renewing the lease for the apartment where Anna lived and in maintaining Anna's Supplemental Nutritional Assistance Program benefits. In support of the petition, the petitioner submitted the affirmation of Anna's primary care physician and the affidavit of a licensed psychologist who also evaluated Anna, in [*2]which each independently concluded that Anna was incapable of managing herself and her affairs by reason of her disability, which was permanent in nature or likely to continue indefinitely. In the order appealed from, the Surrogate's Court denied the petition and dismissed the proceeding, concluding, without discussion, that a proceeding under Mental Hygiene Law article 81 would be more appropriate. The petitioner appeals.

Pursuant to article 17-A of the Surrogate's Court Procedure Act, "the court is authorized to appoint a guardian of the person [who is intellectually disabled] . . . if such appointment . . . is in the best interest of the person who is intellectually disabled." Under the statutory scheme, a person is intellectually disabled if that person has been certified by, among other possibilities, one licensed physician and one licensed psychologist "as being incapable to manage him or herself and/or his or her affairs by reason of intellectual disability and that such condition is permanent in nature or likely to continue indefinitely" (SCPA 1750[1]).

Here, the record establishes that Anna is intellectually disabled within the meaning of Surrogate's Court Procedure Act article 17-A. Further, the record also establishes that it would be in Anna's best interest to have the petitioner appointed as her guardian. The record shows that Anna is incapable of providing for her most basic needs and that in the absence of court-authorized guardianship, the petitioner, Anna's only sibling, is unable to adequately manage Anna's affairs. Nothing in the record suggests that the petitioner is unqualified to act as Anna's guardian. To the contrary, despite the legal limitations she has encountered, the petitioner has been managing Anna's affairs and providing for Anna since their parents' deaths. Accordingly, the Surrogate's Court should have granted the petition (see Matter of Mark C.H., 28 Misc 3d 765, 776 [Sur Ct, NY County]; cf. Matter of Michelle M., 52 Misc 3d 1211[A] [Sur Ct, Kings County]; Matter of Chaim A. K., 26 Misc 3d 837, 843 [Sur Ct, NY County]). We grant the petition and remit the matter to the Surrogate's Court, Kings County, for the entry of an appropriate decree naming the petitioner to serve as Anna's guardian (see SCPA 1754[5])."

BEING HOMELESS DOES NOT MEAN BEING INCAPACITATED

Matter of Fritz G., 2018 NY Slip Op 05592, Decided on August 1, 2018, Appellate Division, Second Department:

"The petitioner is the mother of Fritz G., who allegedly suffers from schizophrenia and bipolar disorder. The petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 seeking to be appointed as the guardian of the person and property of Fritz G. She alleged that Fritz G. was not compliant with his medications and that, as a result, he lived on the street and did not take care of himself. After a hearing, the Supreme Court, inter alia, granted that branch of the petition which was to have the petitioner appointed as the guardian of the person of Fritz G., and appointed the petitioner as the guardian of Fritz G.'s person. Fritz G. appeals.

The Supreme Court may appoint a guardian for a person if the court determines that the appointment is necessary to provide for the person's personal needs or to manage his or her property and financial affairs, and the person either agrees to the appointment or is incapacitated (see Mental Hygiene Law § 81.02[a]; Matter of Harold W.S. [Mark P.—Lauralyn W.], 134 AD3d 724, 724-725). In determining whether the appointment of a guardian is necessary, the court must consider the report of a court evaluator as well as the sufficiency and reliability of resources that may be available to provide for personal needs or property management absent the appointment of a guardian (see Mental Hygiene Law § 81.02[a]). A determination of incapacity must be based on clear and convincing evidence and must consist of a determination that a person is likely to suffer harm because he or she is unable to provide for personal needs or property management and cannot adequately understand and appreciate the nature and consequences of such inability (see Mental Hygiene Law § 81.02[b]). Moreover, a guardian should be appointed only as a last resort, where no available resources or other alternative will adequately protect the alleged incapacitated person (see Matter of Harold W.S. [Mark P.—Lauralyn W.], 134 AD3d at 725; Matter of Albert S., 286 AD2d 684, 684; Matter of Maher, 207 AD2d 133, 140).

Here, the evidence at the hearing consisted only of the petitioner's testimony regarding Fritz G.'s mental illness, and a cursory report and testimony of the court evaluator, who had only one brief conversation with Fritz G. by telephone. This evidence failed to establish that Fritz G. was incapacitated. Moreover, the Supreme Court failed to consider less restrictive options than appointment of a guardian. Accordingly, that branch of the petition which was to have the petitioner appointed as the guardian of the person of Fritz G. should have been denied. Nevertheless, it was clear from the petitioner's testimony that Fritz G. is in need of assistance, and the parties' attorneys specifically mentioned the possibility of assisted outpatient treatment to address those needs. The petitioner's failure to establish, on this record, the necessity of Mental Hygiene Law article 81 guardianship does not preclude her from seeking any appropriate assistance for Fritz G. (see e.g. Mental Hygiene Law § 9.60)."

CHANGING A CHILD'S SURNAME WHEN UNMARRIED PARENTS SPLIT

Matter of Rudder v Garber, 2018 NY Slip Op 05596, Decided on August 1, 2018, Appellate Division, Second Department:

"Melissa Patton Rudder (hereinafter the mother) and John Richard Garber (hereinafter the father) are the parents of an infant, who was born in 2012. When the infant was born, he was given the father's surname as reflected by the infant's birth certificate. Although the mother and father, who never married, lived together with the infant for approximately one year, they eventually ended their relationship. In December 2014, the mother commenced this proceeding pursuant to Civil Rights Law article 6 on behalf of the infant for leave to change the infant's surname to Rudder-Garber. The Supreme Court granted the petition, and the father appeals.

"Civil Rights Law § 63 authorizes an infant's name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change" (Matter of Eberhardt, 83 AD3d 116, 121). Here, the record supports the Supreme Court's determination that the father's objections to the proposed name were not reasonable, and that the interests of the infant will be substantially promoted by the change (see Civil Rights Law § 63; Matter of Eberhardt, 83 AD3d at 121-125; Matter of Siira, 7 AD3d 803, 803-804; Matter of John Phillip M.-P., 307 AD2d 318, 319).

The father's remaining contention, that the Supreme Court erred in failing to conduct a hearing before making its determination, is without merit (see Civil Rights Law § 63)."

A STATE SERVICE MARK ACTION

In this case, the mark was not a federal registered mark and the allegations rested on state law. And note the court's last order regarding the undertaking.

Apple A.C. & Appliance Serv., Inc. v Apple Home Heating Corp. 2018 NY Slip Op 05567, Decided on August 1, 2018, Appellate Division, Second Department:

"The plaintiff, Apple Air Conditioning & Appliance Service, Inc., doing business as Apple Air Conditioning and Heating, has been in the business of servicing air conditioning and heating units on Long Island since 1985. In 2009, the defendant Dominick Maramonte formed the defendant Apple Home Heating Corp., which also services air conditioning and heating units on Long Island. In 2016, the plaintiff commenced this action, asserting causes of action alleging unfair competition, service mark infringement, service mark dilution, and deceptive trade practice. In the order appealed from, the Supreme Court granted the plaintiff's motion to preliminarily enjoin the defendants from using the trade name "Apple" in connection with their business and directed the plaintiff to post an undertaking in the sum of $15,000. The defendants appeal.

"A preliminary injunction may be granted under CPLR article 63 when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor" (Doe v Axelrod, 73 NY2d 748, 750 [internal quotation marks omitted]). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court (see id. at 750). Here, the plaintiff established a likelihood of success on the merits with its showing that the public is likely to confuse the defendant's name, Apple Home Heating Corp., with its name, Apple Air Conditioning & Appliance Service, Inc., doing business as Apple Air Conditioning and Heating, and that the use of the word "Apple" has a secondary meaning, in that it is associated with the plaintiff as a specific air conditioning and heating unit service provider on [*2]Long Island (see Matter of Staten Is. Bd. of Realtors v Smith, 298 AD2d 592, 594; Frank's Rest. v Lauramar Enters., 273 AD2d 349).

The likelihood of confusion created by the use of the name "Apple" by the defendants, which offers the same services as the plaintiff in the same market, and which will affect the plaintiff's reputation with customers and potential customers, constitutes irreparable harm (see Klein, Wagner & Morris v Lawrence A. Klein, P.C., 186 AD2d 631, 633; Adirondack Appliance Repair v Adirondack Appliance Parts, 148 AD2d 796, 797-798). Finally, the balance of equities tips in the favor of the plaintiff, which has been using the name "Apple" since 1985.

We agree with the defendants, however, that the fixing of the undertaking to be posted by the plaintiff in the sum of $15,000 was an improvident exercise of discretion, and conclude that an undertaking in the sum of $30,000 is appropriate under the circumstances (see Access Med. Group, P.C. v Straus Family Capital Group, LLC, 44 AD3d 975)."

A VERY COMMON FAMILY DISPUTE

This is a common allegation and a common dispute when the caretaker of Mom or Dad is one of the siblings. In this case, we do not have the specific facts but it demonstrates that more than general allegations are needed.

Cascardo v Cascardo, 2018 NY Slip Op 0544,1 Decided on July 25, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action against her brother, inter alia, to recover damages for fraud and breach of fiduciary duty in connection with powers of attorney executed by the parties' father, naming the defendant as his attorney-in-fact. The plaintiff alleges that the defendant fraudulently induced their father to execute a number of powers of attorney, and then used the powers of attorney to sell bonds jointly owned by the plaintiff and their father, close the father's various bank accounts, write checks and carry on banking transactions in the father's name, and obtain the father's social security and pension benefits. The defendant moved, among other things, for summary judgment dismissing the complaint, and the Supreme Court granted that branch of the motion.

In response to the defendant's prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, made through admissible evidence, the plaintiff failed to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 559). The plaintiff failed to present evidence that the defendant committed fraud or used duress or undue influence in connection with the powers of attorney executed by their father or any transaction where he acted as their father's attorney-in-fact, and failed to otherwise present a genuine issue of fact (see generally Ginsburg Dev. Cos., LLC v Carbone, 134 AD3d 890, 892-893; JAF Partners, Inc. v Rondout Sav. Bank, 72 AD3d 898).

The plaintiff's remaining contentions are not properly before this Court.

Accordingly, we agree with the Supreme Court's determination granting that branch of the defendant's motion which was for summary judgment dismissing the complaint."