First Department Says No Imminent Danger for Child of Shoplifting Mother

The First department, in Matter of Natasha W. v. N.Y.S. Office of Children & and Family Services, found that a child was not in imminent danger of harm when his mother was caught shoplifting from a retail store.  A mother and her five-year-old son were found to be wearing merchandise from Bloomingdale’s department store underneath their own clothes, in an attempt to leave the store without purchasing the items. The shoplifting chargers were reduced to a violation and the record was sealed.  However, the inclusion of her five-year-old son in the scheme resulted in the mother being put on a list released and marked “indicated” for child maltreatment by the New York City Administration for Children’s Services (ACS).  Inclusion on this list, makes it very difficult to obtain a job in child care, the mother’s chosen profession.  The issue reviewed by the administrative judge was whether the mother’s name should be removed from the list.

Under New York’s child protective scheme, a report of suspected child abuse or neglect will be marked “indicated” if the local agencies investigation determines that there is some credible evidence of alleged abuse or maltreatment.  All childcare agencies and other agencies licensed by the State to provide certain services to children are required to inquire whether applicants for employment or to become foster or adoptive parents are subjects of indicated reports.  Any agency electing to hire an individual included in this report must maintain a written record of the specific reasons why such person was determined to be appropriate for approval.  For this mother, who elected to work in the child care field, being included in the report would likely be detrimental to her career.

Once the mother was advised that the report against her was “indicated” she requested an amendment of the report to a determination of “unfounded,” however the request was denied and a hearing before the Administrative Law Judge (ALJ) was scheduled. The ALJ determined that the mother had “maltreated” her child and therefore denied the request, stating the mother’s actions created an imminent risk to the child’s emotional condition.  They further stated that exposure to shoplifting as a child by his own mother would likely lead to the child committing acts of shoplifting on his own in the future.

Thereafter, the mother applied for judicial review, and the motion court granted the petition holding that the ALJ made errors of law in determining the child was in imminent danger.  The motion court further stated that the ALJ erred in failing to consider the factors for determining whether the mother’s actions were relevant and reasonably related to her employment in child care.

The standard set by the Court of Appeals for a finding of neglect, requires a showing, by a preponderance of the evidence, that: (1) a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired; and (2) the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship. Nicholson v. Scoppetta, 3 NY3d 357 (2004). This standard is intended to ensure that the agency will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior, or a prediction of what could happen in the future.

The First Department determined that in this case there was no evidence before the ALJ that the child suffered any injury or required any treatment as a result of the mother’s conduct.  Further, they stated that the mother’s actions were not reasonably related to a position in childcare, as the mother had never been convicted of a crime, had no history with ACS, and the mother expressed regret for her actions. The Court determined that factors including: the seriousness and extent of any injury to the child; harmful effect on the child; time since a last act of maltreatment; number of incidents of abuse or maltreatment; repeated acts; and whether the behavior involved serious injury, all weighed in favor of the mother, and therefore reversed the decision of the ALJ, and determined that the mother should not be included on the list.  The First Department held that her inclusion on the list, would result in an added burden on employers who will be reluctant to hire her and based on the factors above, was unnecessary.

In deciding this case, the court made clear that in determining whether an individual should be marked as “indicated” on the report of child maltreatment in the Statewide Central Register of Child Abuse and Maltreatment, the court will consider whether there is credible evidence of the alleged abuse or maltreatment of a child, and also consider the weight of the factors that consider the severity of the harm to the child against the burden it places on the adult that exposed the child to the harm.

Second Department Deems Lease Provision Permitting Recovery of Rent by Landlord Following Eviction Through Summary Proceeding Enforceable

By James Brodie, Esq.

In L’Aquila Realty, LLC v. Jalyng Food Corp., the Second Department was asked to decide whether a provision in a commercial lease which allowed the landlord to recover rent following the tenant’s eviction from the premises through a summary proceeding was enforceable.  2017 NY Slip Op. 02027.

By way of background, the tenant in this matter was a corporation that signed a fifteen (15) year commercial lease agreement with the plaintiff/landlord at some point in April of 2008.  Notably, the lease agreement contained no provision requiring the landlord/plaintiff to mitigate its damages following the defendants’ breach.  Both the tenant/corporation and two of the corporation’s principals (in their individual capacities) were named as defendants in the lawsuit.  Notably, within the signed lease, the principals of the defendant corporation personally guaranteed the corporation/tenant’s performance.  In October of 2009, the plaintiff commenced a summary proceeding for non-payment of rent and the defendant/corporation was evicted from the premises.

 After the summary eviction proceeding concluded and the defendant corporation had been removed from the plaintiff’s premises, the plaintiff filed suit against the tenant and its two principals for damages resulting from the breach of the lease agreement.  In its decision, the trial court held that (1) the plaintiff was “entitled to post-termination damages for [the defendant corporation’s] breach of the lease and (2) the named principals had personally guaranteed the defendant/corporation’s lease obligations.  A resulting judgment in the amount of $1,183,698.38 was entered and the defendant/tenants appealed thereafter.

 On appeal, the Second Department held that “the Supreme Court’s determination to impose post-termination liability upon [the defendant corporation] for its breach of the lease was warranted by the facts.”  Specifically, the Court stated as follows:

 “Although an eviction terminates the landlord-tenant relationship, the parties to a lease are not foreclosed from contracting as they please” (Holy Props. v Cole Prods., 87 NY2d 130, 134). “Where a lease provides that a landlord is under no duty to mitigate damages after its reentry by virtue of its successful prosecution of a summary proceeding, and that the tenant remains liable for damages, [the tenant] remain[s] liable for all monetary obligations arising under the lease’” (H.L. Realty, LLC v Edwards, 131 AD3d 573, 575, quoting Holy Props. v Cole Prods., 87 NY2d at 134). Here, the lease did not obligate the plaintiff to mitigate damages after a dispossession by summary proceeding and specifically provided that [the defendant corporation] would remain liable for rent after eviction. In addition, the lease clearly stated that if [the defendant corporation] breached the lease, the plaintiff was not precluded from any other remedy in law or equity. Consequently, the lease did not limit the plaintiff to recovery of only pretermination rent in the event that it commenced a summary eviction proceeding to regain possession of the premises (see H.L. Realty, LLC v Edwards, 131 AD3d at 575; Patchogue Assoc. v Sears, Roebuck & Co., 108 AD3d 659, 660 – 661; Gallery at Fulton St., LLC v Wendnew LLC, 30 AD3d 221, 222).

 However, the Court also dismissed the complaint as against the defendant corporation’s two principals (having been sued in their individual capacities), citing the rules that (1) “a corporate office who executes a contract acting as an agent for a disclosed principal is not liable for a breach of the contract unless it clearly appears that he or she intended to bind him or herself personally” and (2) there must be clear evidence of the agent’s intention to substitute his personal liability for, or to, that of his principal.  In this case, where the individual principal/defendants had “only signed the lease as ‘Tenant’ on behalf of their disclosed principal [ ], there was not clear and explicit evidence that they intended to bind themselves personally.

Final Say Goes to Counsel When Deciding Whether to Call a Witness

By Christopher Connors

 A defendant is not deprived of the right to call a witness where Counsel, exercising his or her professional judgment, believes it will be disadvantageous to do so. The First Department in People v. Sheard, 2016 N.Y. Slip Op. 08186, proclaimed calling a witness to be a strategic decision, and therefore should be left in the hands of counsel, not the client. Counsel’s refusal to call codefendant as a witness, who he viewed as detrimental to his clients position, was not viewed as a deprivation of the defendant’s rights.

 After being convicted to a seven year sentence for criminal possession and sale of a controlled substance, defendant “vehemently” wanted his codefendant to testify on his behalf at trial. Counsel determined that he would not call the codefendant, who had implicated the defendant in the sale of illegal substances in his plea allocution, to testify. After the trial court’s decision, defendant appealed the ruling claiming ineffective assistance of counsel.

 In this appeal the defendant asserted he was deprived of his right to call a witness as evidence of his claim. The Appellate Court stated “[i]f defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is for the attorney . . . the defendant is deprived of the expert judgment of counsel to which the Sixth Amendment entitles him or her.” The Court also noted Counsels “sound reason for not calling the codefendant” as proof that defendant was not disadvantaged by Counsel’s decision.

 Despite defendant’s desire to call codefendant as a witness, the First Department Appellate Court found defense counsel properly exercised professional judgment in deciding not to call the witness, and ruled defendant’s claim of ineffective assistance of counsel was meritless.

Court of Appeals Upholds Supreme Court’s Decision as it is a Question of Fact as to whether it was Reasonably Foreseeable That a Motorist Would Exit Her Vehicle and Enter Roadway to Assist to Help a Calf That Escaped from nearby Farm and Was Struck and Killed by another Motorist

In Hain v. Jamison, et al., 2016 NY Slip Op 08583 (December 22, 2016), the decedent, wife of plaintiff, exited out of her vehicle to assist a calf that became loose in the northbound lane of a rural road. The defendant driver testified she was traveling north on the road and slowed down as she approached a curve in the road. As she was coming around the curve, she noticed a vehicle pulled over on the southbound side of the road with bright headlights. As the defendant driver was passing the pulled over vehicle and her vision was adjusting from the bright lights, she stuck and killed the decedent. As a result, the decedent’s husband commenced action against the driver of the automobile for negligently operating her vehicle as well as the Farm that contained the calf for failing to maintain its fence and restrain or retrieve the calf, thereby allowing it to wander into the roadway.

The defendant Farm moved for summary judgment arguing the calf’s escape did not constitute a proximate cause of decedent’s death and that it was an intervening and unforeseeable act of the decedent exiting out of her vehicle to assist the calf on the roadway. Furthermore, the defendant Farm argued that it was the defendant driver’s sole negligent act in operating her motor vehicle that was the proximate cause of decedent’s death.

The Supreme Court denied the defendant farm’s motion concluding “decedent’s conduct in exiting her vehicle was sufficiently extraordinary and unforeseeable to break the chain of causation”. However, upon appeal, the Appellate Division reversed the Supreme Court’s decision holding “the farm had established that its alleged negligence in allowing the calf to escape was not a proximate cause of decedent’s death, reasoning that the Farm’s negligence merely furnished the occasion for, but did not cause, decedent to enter the roadway”, where she meet her demise.

Co-defendant, sought leave to appeal the dismissal of their cross claims against the defendant Farm, which was ultimately granted.

In a lengthy analysis, the Court stated “the question of whether a particular act of negligence is a substantial cause of the plaintiff’s injuries is one to be made by the factfinder, as such a determination turns upon questions of foreseeability and “what is foreseeable and what is normal may be the subject of varying inferences”. The Court further went on to hold “when a question of proximate cause involves an intervening act, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence”. However, the Court stated there is no precise line between those intervening acts which break the chain of causation as several factors are taken into consideration. The Court noted there are only rare instances in which as a matter of law, “a defendant’s negligence merely created the opportunity for, but did not cause, the event that resulted in harm.” The Court held here, “a question of fact is presented for the jury where a driver’s negligence contemporaneously causes another accident or where, due to a defendant’s negligence, the plaintiff is left in a position susceptible to further harm”.

Therefore, the Court held it is a question for the factfinder as to the proximate cause as “a jury could reasonably conclude that it is foreseeable that a motorist who encounters such an animal on a rural roadway would attempt to remove the animal from the thoroughfare” and such conduct “cannot, as a matter of law, be considered so extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, that it breaks the chain of causation”.

In sum, the Court held insofar as the appeal from, the Appellate Division should reverse with costs and the defendant Farm’s motion for summary judgment dismissing the driver defendant’s claims against it should be denied.

It should be noted, in Hasting v. Sauve, 21 N.Y.3d 122, 989 N.E.2d 940 (2012), a cow wandered into a public road and caused plaintiff injuries as she was driving a van and hit the cow. The court in Hastings held the landowner or animal owner could be liable for negligently allowing a farm animal to stray from property and therefore factual issues existed as to whether the farm property owners and cow owner were negligent. Furthermore, the court noted it does not consider whether the same rule applies to dogs, cats or other household pets, in which “that question must await a different case”.

An Issue of First Impression, Court of Appeals Determines Article 16 Apportionment Applies Differently to Actions in the Court of Claims and Supreme Court

By Christopher Guetti

Article 16 of the New York State Civil Practice Law and Rules modified the common-law rule of joint and several liability by limiting a joint tortfeasors liability under certain circumstances. It provides that in a personal injury action involving two or more jointly liable tortfeasors or in a claim brought against the State in the Court of Claims, the liability for non-economic loss of a defendant with 50% or less “of the total liability assigned to all persons liable… shall not exceed that defendant’s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss”. Stated more simply, in the event a defendant or the State was found to be less than 50% liable for a plaintiff’s non-economic loss (i.e. pain and suffering), that defendant or the State will only be required to pay for that portion of the liability attributed to that defendant.

 Although an injured party can file a claim against the State of New York, those claims can only be heard in the Court of Claims, and without a jury, not in the Supreme Court. Because there are two separate trials, there can also be two separate, and inconsistent, verdicts.

 To make matters a little more confusing, the question before the Court of Appeals was whether or not Article 16 would be applied differently in a Supreme Court action versus a Court of Claims action, an issue that has been open for many years.

 In Artibee v. Home Place Corp., 2017 N.Y. Slip Op. 01145, — N.E.3d —- (2017), a Supreme Court action, a defendant sought to introduce evidence at trial of the State’s negligence and for a jury charge directing the apportionment of liability for plaintiff’s injuries between the defendant and the State. The Supreme (lower trial) Court determined that the language of the statute and equitable considerations required denial of defendant’s request, and then adjourned the trial to permit the defendant to appeal. The Appellate Division modified, by reversing the denial of defendants motion for a jury charge an apportionment.

 The Court of Appeals reversed the Appellate Division following its analysis. The statutory language of Article 16 permitted apportionment in the Court of Claims against a private defendant if the claimant could have sued that defendant in any court of the state. On the other hand, the statute does not contain similar language allowing apportionment against the State in a Supreme Court action. Therefore, Court concluded, the defendant in the Supreme Court Action could not seek apportionment against the state in that action.

 To get to that determination, the Court also went on to discuss personal and subject matter jurisdiction. Based upon the State Constitution and the relevant case law, there was a restriction on Supreme Court, imposed by the doctrine of sovereign immunity, which was jurisdictional in nature. It was clear, therefore, that plaintiff could not obtain either personal jurisdiction, meaning an inability to obtain jurisdiction over the state, or subject matter jurisdiction, meaning the power of a court to adjudicate a particular type of matter and provide the remedy demanded. The Court held that there was no ability to obtain jurisdiction over the State despite the ability of the plaintiff to commence an action against the State in a separate Court of Claims action. With no ability to obtain jurisdiction over the State in the Supreme Court action, there was no party that could have been made part of the action against whom the defendant in the Supreme Court action could seek apportionment.

 Bottom line, this decision appears to put to rest an outstanding issue of law concerning private claims and those against the State. In a Court of Claims action, the State can seek apportionment against other non-parties in attempt to reduce its overall liability for non-economic loss, but a defendant in a Supreme Court action cannot similarly seek such apportionment against the State to potentially reduce its joint and several liability for that same loss, despite the ability to commence an action against the State in the Court of Claims.

Notification of Insurer Created Gaps

The Second Department recently decided a case which expands the notification requirements set forth in New York Insurance Law § 3425(d)(1). Statutory interpretation of this section supports that a “change of limits” includes an umbrella policy’s change of the required underlying limits in a primary automobile policy. Insurance providers should be sure to understand the Gotkin ruling when providing notice for renewing policies.

In the Gotkin v. Allstate Insurance case, the plaintiff maintained both automobile and umbrella insurance policies with Allstate since 1990. In 2004, he changed his automobile insurance to a policy under Nationwide, but decided to keep the automobile policy with Allstate. Upon making this change, and without adequately informing the policy holder, Allstate increased the underling primary limits that the insured was required to maintain, creating a gap of $150,000 in the policies. After being involved in an automobile accident, Allstate informed the plaintiff that due to his failure to comply with the increased limits he was not sufficiently covered.

The insured sued, and the court found that the notice requirement of § 3425(d)(1) of the New York Insurance Law applies to an umbrella policy when certain amounts of underlying coverage are required to be maintained. A failure to send the required notice provides a basis for reforming the policy. In accordance with this section, Allstate was required to provide written notice of the new conditions at a minimum of 45 days prior to the end of the policy. Included in this notice must be the reasons for the new conditions.

Upon reviewing the circumstances of this case, the Court explained that if a “change to the requirements of the underlying limits to a primary automobile insurance policy…create a gap in coverage in an umbrella policy upon which renewal is conditioned, [it] requires that the insurer provide proper notice… and the failure to do so provides a basis to grant reformation of the umbrella policy.” This requirement is not dependent on whether the insured knew of the gap or had read the policy. By creating a gap in coverage, the insurer implemented a “change” of the limits of the policy which required the mandated notice. The Court granted the insured’s motion of summary judgment for reformation of the policy in accordance with § 3425(d)(1).

Is Mere Speculation Of Cause Of Accident Enough To Establish The Cause Of Plaintiff’s Injuries?

In Hahn v. Go Go Bus Tours, Inc., 2016, NY Slip Op 07294, the Second Department recently reversed a Supreme Court, Queens County case in which it had denied defendant’s motion for summary judgment.

Here, the plaintiff fell while attempting to board a bus that was parked along a sidewalk. Plaintiff was unable to identify the cause of his accident without speculation. As a result, defendant moved for summary judgment arguing “its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” (Ash v City of New York, 109 AD3d at 855; see Mitgang v PJ Venture HG, LLC, 126 AD3d at 863-864).

The Court held that although proximate cause may be established by inferences from the circumstances of the accident, where there could have been many possible causes, mere speculation as to the cause of the accident is fatal to a cause of action. See Patrick v. Costco Wholesale Corp., 77 AD3d 810; McFadden v. 726 Liberty Corp., 89 AD3d 1067; Costantino v. Webel, 57 AD3d 472; Alabre v. Kings Flatland Car Care Ctr., Inc. 84 AD3d 1286. The Court noted that it could have been just as likely that plaintiff had a misstep or a loss of balance which attributed to plaintiff’s trip and fall accident.

As a result, the Court held defendants were entitled to summary judgment as a matter of law since plaintiff could not identify the cause of his accident without mere speculation.

In A Slip And Fall Case, Is A Slippery Surface Enough To Support A Cause Of Action For Negligence?

In Kapoor v. Randlett, 2016, NY Slip Op 07927, plaintiff testified that he slipped on wax that was applied to the top step of a wooden staircase inside an apartment he was renting. Plaintiff commenced suit alleging defendants negligently applied wax to the staircase.

Defendants moved for summary judgment as to the alleged negligent application of wax or polish to the staircase.

The Court, citing to Mroz v. Ella Corp., 262 AD2d 465, held “in the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence”.

In opposition, plaintiff contended that the staircase was in violation of Administrative Code of the City of New York, Section 27-375(h). However, the Court noted, since the subject staircase did not serve as a required exit from the building, the cited Administrative Code did not apply.

Therefore, the Court reversed the Supreme Court’s decision and held defendants’ submitted evidence sufficient to “establish their prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as was based on the defendants’ alleged negligent application of wax or polish to the subject staircase.”

Negligence Action against Municipality Should Not Have Been Dismissed Where Fire Rekindled After Assurance by Fire Department Personnel That Fire Had Been Extinguished

By James Brodie, Esq.

In a decision dated November 23, 2016, the Appellate Division, Third Department decided the issue of whether the plaintiff’s negligence cause of action should have been dismissed by the Supreme Court.

 On the evening of February 2, 2013, the plaintiff’s home caught fire in the City of Albany prompting him to call 911 immediately. Shortly thereafter, the defendant City of Albany Fire Department responded to the scene and undertook efforts to stop the fire. Notably, the plaintiffs alleged that, “some time later, the Department’s lead investigator advised them that the fire had been fully extinguished and that it was therefore safe to reenter the premises.” Trimble v. City of Albany (2016 NY Slip Op 07912). Based on the investigator’s statement, the plaintiffs reentered their home, gathered some belongings, and then left to sleep at a relative’s home for the night.

 At some point during the night, the fire rekindled and the home was completely destroyed. As a result of their investigation, the Department “concluded that the rekindling of the fire was caused by embers from the initial fire that had gone undetected in a window well beneath the kitchen.”

 Because of that fact, the plaintiffs filed a claim for negligence against the City of Albany. Thereafter, the defendant made a motion to dismiss the complaint, arguing that the plaintiffs “failed to establish the existence of a special relationship giving rise to a duty of care and, further, that the firefighters on the scene were performing discretionary governmental function for which liability cannot be imposed.” The trial court granted the defendant’s motion, finding that (1) no special relationship existed between the parties, and (2) the defendant was entitled to governmental immunity.

 Case law provides that a municipality may not be held liable for the negligent performance of a governmental function such as fire protection unless the municipality “voluntarily undertakes to act on behalf of a specific citizen, who relies on a promise of protection offered by the municipality to his or her detriment.” Id. A special relationship exists where the plaintiff can establish the following elements: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the part who was injured, (2) knowledge on the part of the municipality’s agents that inaction could lead to harm, (3) some form of direct contact between the municipality’s agents and the injured party, and (4) the party’s justifiable reliance on the municipality’s affirmative undertaking.

 On appeal, the Appellate Division found for the plaintiffs and reversed the Supreme Court’s decision. In particular, the Court found that a special relationship was established through the Fire Department’s affirmative representations to the plaintiffs that the fire had been fully extinguished and that it was safe to reenter the home. The second and third elements were simply be inferred from the circumstances. Lastly, the Court held that, under the circumstances, a jury could “find that the plaintiff’s reliance on the Department’s assurances was reasonable and that such assurances ‘lulled [them] into a false sense of security and . . . thereby induced [them] . . . to forego other available avenues of protection with regard to the property.”

 The defendant also asserted the defense of governmental immunity which shields public entities from liability for discretionary actions taken during the performance of governmental functions. In particular, this defense is only available when the conduct giving rise to the claim is related to an exercise of discretion (meaning the exercise of reasoned judgment which would typically produce different acceptable results).

 While the function of firefighting undoubtedly involves the exercise of discretion, the plaintiff asserted that the defendant was negligent through its specific failures (1) to overhaul the area underneath the window well where it was determined that the second fire had originated and (2) remove loose debris and damaged material from the window well area following the first fire (a violation of its own standard operating procedures and protocols). The Court agreed, holding that the failures listed above were not the consequence of an actual decision or choice on the part of the Department, but instead that the Fire Department had not made a judgment of any sort. As a result, the defense of governmental immunity was deemed inapplicable to the present circumstances.

Court of Appeals Forces Significant Change for Title Insurance Companies

By Christopher Connors

The well-established precedent in New York has long been to apply a six-year statute of limitations on fraud applied to deed forgery claims.  A recent decision by the Court of Appeals would likely require title insurance companies to develop new policies in response to a critical change in a claim for deed forgery.  In a closely contested decision, the Court of Appeals made a drastic change from its traditional application of the statute of frauds in deed forgery cases.

 In a recent 4-3 ruling by the Court of Appeals, it was decided that the six-year statute of limitations set forth in CPLR 213, does not deny the plaintiff from setting aside a forged deed.  The Court in Faison v. Lewis, 25 N.Y.3d 220, went on to explain that a deed containing a forged signature is void initially and will not convey good title.  They also explained that what is void at its inception cannot be validated by the use of a statute of limitations defense.

 First cousins, Faison and Lewis were each set to receive a one-half interest in a property from their respective parents upon the parent’s death.  In 2001, a “correction deed” was created with the intentions of conveying the entire property to Lewis.  Shortly thereafter, Faison’s father passed away, and Faison challenged the deed, claiming that her father’s signature had been acquired through an act of forgery.  At the time she challenged the deed, however, Faison was not the administrator of her father’s estate, and the case was properly dismissed.  Despite Faison’s efforts to alert the estate’s attorney to pursue her claim, the attorney never took action. The attorney has since been disbarred from the practice of law.  In 2009, now in sole possession of the property, Lewis acquired a loan from Bank of America secured by a mortgage on the property.  Faison went on to challenge the validity of the deed and the newly acquired loan a year later when she was appointed the administrator of the estate by the Surrogate’s Court.  However, she failed when the court ruled that the claim was barred by a six year statute of limitations for fraud applied to forgery claims.

 Bank of America was successful in the lower courts, blocking Faison’s attempts to disregard the statute of limitations in this case.  On appeal however, the Court of Appeals reversed the intermediate and trial court’s decision, and established a new precedent in these types of cases.  It was determined that a statute of limitations defense may not be used to protect a document that was established by fraudulent means. The majority believed that “barriers” should not be placed around a forged deed to protect it given its fraudulent nature.    The court followed the belief that a forged deed is “void ab initio” or null at its inception, and therefore the statute of limitations defense does not apply.

 While the decision may be good news for those seeking to recover property lost by a forged deed many years ago, it exposes title insurers to increased litigation expenses and greater risk.  Regardless of how old a deed may be, claims for forgery may now be brought to set the deed aside, increasing the potential liability title insurance companies face. Title insurance companies should be mindful of this decision when developing policies and assuming risk.  For further information on this issue, please contact Flink Smith.