Constructive Fraud

When property is transferred to a stranger for no consideration, there is a presumption that the transaction was unfair. Rosevear v. Sullivan, 47 AD 421, 62 NYS 447 (2d Dept. 1900), “and where one party has the advantage of the other, then the burden is on the other party to furnish satisfactory proof that the transaction was in all respects fair.”  Id at 423; Arakjinjian v. Arakian, 268 AD 41, 48 NYS2d 501 (1st Dept. 1944); Greenfield v. Greenfield, 123 NYS2d 19 (Sup. Ct., Kings Co. 1953).

An explanation of the reason for the shifting of the burden of proof is provided in Greenfield, infra at page 21, quoting Green v. Roworth, 113 NY 462:

“As was said by Judge Hand in Cowee v. Cornell, 75 NY [91] 99: ‘We return, then, to the question whether this case was one for constructive fraud.  It may be stated as universally true that fraud vitiates all contracts, but as a general thing it is not presumed, but must be proved by the party seeking to relieve himself of an obligation on that ground.  Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that, either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or, on the other, from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced , no undue influence was used, and that all was fair, open, voluntary, and well understood.’ “

The holding of the cases requires that the burden of proof should be shifted to the defendant/transferee of property to prove at the onset of trial, “that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood.”

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Affidavit of Service Is Primary Proof

The Second Department held, in National Heritage Life Insurance Co. v. T.J. Properties Co., 286 AD2d 715 [2d Dept. 2001], that the affidavit of service of a process server constitutes prima facie evidence of valid service. An affidavit of service by a process server which specifies the papers served, the person who was served, and the date, time, address and sets forth facts showing that service was made by an authorized person, and in an authorized manner, constitute prima facie evidence of proper service. See, Maldonado v. County of Suffolk, 229 AD2d 376 [2 Dept. 1996].

The bare denial of service is insufficient to rebut prima facie proof of proper service pursuant to CPLR 308 created by a process server’s affidavit. Wunsch v. Cerwinski, 36 AD3d 612 [2 Dept. 2007].

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Consolidation of Actions

Consolidation is generally favored in the interested of judicial economy and ease of decision-making where cases present common questions of law and facts, unless the opposing party demonstrates that consolidation will prejudice a substantial right. See, Rist v. Comi, 260 AD2d 890 (3d Dept. 1999); Progressive Insurance Co. v. Vasquez, 10 AD3d 518 (1st Dept. 2004); Eagle Pet Service Co., Inc. v. Pacific Employers Insurance Co., 102 AD2d 814 (2d Dept. 1984).

It is not necessary, for purposes of consolidation, that all parties or all issues be common to both actions. See, Fourteen Sharot Place Realty Corp. v. Miceli, 125 AD2d 634 (2d Dept. 1986). The commonalities of the actions and the pressing need for judicial relief may constitute sufficient bases for consolidation of actions.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Plaintiff Has Stated Valid Causes of Action Sufficient to Withstand Defendants’ Motion to Dismiss Action

In an action, Defendants may move to dismiss a Plaintiff’s Complaint based upon the allegation that the Complaint fails to state a cause of action, pursuant to CPLR 3211(a)(3) and (7). In deciding such a motion, the court must accept the facts as alleged in the Complaint as true, according the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Goldman v. Metropolitan Life Insurance Co., 5 NY3d 561 [2005]. Essentially, the court should impose a “four corners” test in liberally construing the four corners of the pleading to see whether they establish valid causes of action. Schwaner v. Collins, 17 AD3d 1068 [4 Dept. 2005].

As the Court of Appeals enunciated in Guggenheimer v. Ginzburg, 43 NY2d 268 [1977], on a motion to dismiss made pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law.” Further, “when evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate.” Guggenheimer, supra at 275.

Next post
Previous post

Punitive Damages Are Not Recoverable for Ordinary Breach of Contract

Punitive damages are those awarded to a litigant, separate and apart from the person’s actual damages, to “punish” the bad conduct of the other party.

It is well-founded that “punitive damages are not recoverable for ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights.” See, Rocanova v. Equitable Life Assurance Society of United States, 83 NY2d 603 [1994]. Damages arising from a simple breach of contract are usually limited to contract damages. See, New York University v. Continental Insurance Company, 87 NY2d 308 [1995].

R. A. Klass
Your Court Street Lawyer

Next post
Previous post