FULL SUMMARIES OF SELECTED DECISIONS RELEASED 10-16-23 - 10-20-23 BY THE 1ST, 2ND & 3RD DEPARTMENTS
Click on the legal categories to go to all the summaries in those categories on the New York Appellate Digest website. Click on the citations to go to the full decisions on the official New York Courts website.
IN A FALLING OBJECT CASE WHERE INADEQUATE SAFETY EQUIPMENT IS ALLEGED, THE FACT THAT THE PLAINTIFF DOES NOT KNOW WHAT THE OBJECT WAS DOES NOT PRECLUDE SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this falling object case. Plaintiff did not see or know what struck him. There was a hole in the protective netting:
… [T]he fact that the injured plaintiff could not identify the object that struck him or its origin did not preclude summary judgment in plaintiffs’ favor. A plaintiff’s prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him … . Further, a plaintiff is not required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries … . Here, plaintiff testified that he was struck on the head and neck by an unknown object while working on an outrigging platform on the 25th floor of the building under construction. He also testified that he heard workers stripping wood on the floors above him at the time of the accident, and submitted photographs depicting a large hole in the safety netting that served as overhead protection. This evidence was sufficient to establish prima facie that the accident was the result of a violation of Labor Law § 240(1) … . In opposition, defendants failed to provide any version of the accident under which they could not be held liable, making summary judgment appropriate … .?Harsanyi v Extell 4110 LLC, 2023 NY Slip Op 05313, First Dept 10-19-23
Practice Point: Here plaintiff alleged he was struck by a falling object and the safety netting was inadequate. The fact that he did not know what the object was did not preclude summary judgment on his Labor Law 240(1) cause of action.
OCTOBER 19, 2023
A JUDGE CANNOT ENTER A JUDGMENT WHICH DOES NOT CONFORM TO THE ORDER; HERE THE JUDGMENT ELIMINATED MILLIONS OF DOLLARS IN DAMAGES AND EXTINGUISHED A DEFENDANT’S LIABILITY (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court, determined the judge did not have the power to, sua sponte, enter an judgment?which did not conform to its order. The judgment eliminated millions of dollars in damages and extinguished liability with respect to a defendant:
“A written order [or judgment] must conform strictly to the court’s decision, and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . A court exceeds its authority when it sua sponte vacates its prior order, as it “has no revisory or appellate jurisdiction, sua sponte, to vacate its own order” … . Here, the court exceeded its authority in entering the judgment, which effectively reversed or vacated its prior confirmation order without notice. Accordingly, the court is directed to enter a revised judgment that conforms to the confirmation order with respect to damages and liability.?Magna Equities II, LLC v Writ Media Group Inc., 2023 NY Slip Op 05320, First Dept 10-19-23
Practice Point: A judge cannot effectively vacate a prior order by entering a judgment which does not conform to the order.
OCTOBER 19, 2023
MALPRACTICE TREATING THE INITIAL MEDICAL INJURY AT ANOTHER HOSPITAL IS A FORESEEABLE CONSEQUENCE OF THE INITIAL MEDICAL INJURY (FIRST DEPT).
The First Department, reversing Supreme Court and reinstating the medical malpractice action, noted that malpractice in treating an injury is a foreseeable consequence of the injury. Plaintiff’s decedent was injured during surgery and the injury was subsequently treated at another hospital (The Valley Hospital). Defendants’ expert opined that a delay in treatment at The Valley Hospital was the cause of decedent’s injuries:
Although defendants’ expert opined that the cause of decedent’s injuries was negligent delay by The Valley Hospital, any such delay “does not absolve defendant[s] from liability because there may be more than one proximate cause of an injury” … . Malpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort … . Therefore, regarding these injuries, defendants’ expert “never actually opined that [decedent’s] claimed injuries were not causally related to defendants’ alleged malpractice” … . Murphy v Chinatown Cardiology, P.C., 2023 NY Slip Op 05321, First Dept 10-19-23
Practice Point: If the initial medical injury leads to subsequent treatment at another hospital, any malpractice in the subsequent treatment is a foreseeable consequence of the initial medical injury.
OCTOBER 19, 2023
THE MOTION TO AMEND THE COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES SHOULD HAVE BEEN GRANTED; ADDING ALLEGATIONS WHICH INCREASE A DEFENDANT’S EXPOSURE TO LIABILITY DOES NOT CONSTITUTE PREJUDICE TO THE DEFENDANT (FIRST DEPT).
The First Department, reversing Supreme Court, determined the motion to amend the complaint to add a claim for punitive damages did not prejudice defendant (Eldridge) and should have been granted:
The court improvidently exercised its discretion and should have granted plaintiffs’ motion to amend the complaint to add a claim for punitive damages against Eldridge based on his deposition testimony that he knowingly drove a truck on a public roadway with defective brakes, horn, and one inoperable windshield wiper, and was reaching for his cell phone that had fallen to the floor of the car when his truck collided with the rear of plaintiffs’ vehicle. A jury might find that such conduct sufficiently demonstrated a conscious and willful disregard of the interests of others … .
The court denied plaintiffs’ motion to reargue their … order upon a finding that the amendment would prejudice Eldridge because it subjected him to personal exposure in the accident. However, greater exposure to liability does not constitute prejudice. There must be some indication that defendant has been hindered in the preparation of its case or has been prevented from taking some measure to support its position, and the burden of demonstrating prejudice is on the party opposing amendment … . Eldridge failed to sustain his burden of showing prejudice.?Owens v STD Trucking Corp., 2023 NY Slip Op 05323, First Dept 10-19-23
Practice Point: Here the fact that the proposed amendment to the complaint exposed the defendant to greater exposure to liability does not constitute prejudice. The motion to amend the complaint to add a claim for punitive damages should have been granted.
OCTOBER 19, 2023
DEFENDANT APPEARED IN COURT WITH A SUBSTITUTE COUNSEL WHO INFORMED THE COURT ANOTHER LEGAL AID LAWYER WAS BEING ASSIGNED TO DEFENDANT’S CASE; DEFENDANT WAS NOT “WITHOUT COUNSEL” WITHIN THE MEANING OF CPL 30.30; THE ASSOCIATED SPEEDY-TRIAL TIME-PERIOD SHOULD HAVE BEEN CHARGED TO THE PEOPLE, NOT THE DEFENDANT (CT APP).
The Court of Appeals, reversing the Appellate Term. determined the defendant was not “without counsel” during an eight-day period. Therefore that eight-day period must be charged to the People and the People were not ready for the trial within the statutory 90 days:
Under CPL 30.30 (4) (f), a “period during which the defendant is without counsel through no fault of the court” must be excluded when calculating the time within which the People must be ready for trial. However, a defendant is not “without counsel” within the meaning of the statute when appearing with substitute counsel … .
Here, defendant was assigned an attorney from The Legal Aid Society during his arraignment. On November 5, 2018, the date that defendant’s case was calendared for trial, defendant appeared in court with a different attorney from that office, who informed the court that defendant’s original attorney was leaving the office and the case was being reassigned to another attorney from Legal Aid. Defendant plainly was represented at that appearance and was therefore not “without counsel” … .?People v Justice A., 2023 NY Slip Op 05306, CtApp 10-19-23
Practice Point: Appearing with substitute counsel is not appearing “without counsel” within the meaning of CPL 30.30 (4)(f). The associated time should not have been charged to the defendant. The People therefore were not ready for trial within the statutory 90-day period.
OCTOBER 19, 2023
FORENSIC EVIDENCE OF COMPLAINANT’S SEXUAL ACTIVITY SHOULD NOT HAVE BEEN EXCLUDED UNDER THE RAPE SHIELD LAW; DEFENDANT’S RIGHT TO PUT ON A DEFENSE WAS VIOLATED; TWO-JUDGE DISSENT (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Lynch, reversing the Appellate Division, determined forensic evidence of the complainant’s sexual activity should not have been excluded pursuant to the Rape Shield Law. Under the circumstances, by excluding forensic evidence of sexual activity which did not implicate the defendant deprived?defendant of the right to present a defense. The complainant alleged defendant inserted his finger in her vagina and fondled her breasts. A forensic analysis of a vaginal swab and complainant’s underwear revealed the presence of complainant’s saliva and fluids from two unidentified males:
… [T]he legislature enumerated five exceptions to CPL 60.42’s [the Rape Shield Law’s] evidentiary proscriptions. The first four exceptions “allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances,” whereas the fifth “is a broader ‘interest of justice’ provision vesting discretion in the trial court” (Williams, 81 NY2d at 311). “The exceptions . . . recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses” … .
Defendant argues that the forensic evidence was admissible under several of the exceptions set forth in CPL 60.42. We need not address every basis raised because we conclude that the trial court erred in denying admission of the evidence under CPL 60.42 (5). Under this subdivision, evidence of a victim’s sexual conduct may be admitted in evidence during a sex crime prosecution when it “is determined by the [trial] court after an offer of proof by the accused . . . to be relevant and admissible in the interests of justice” (CPL 60.42 [5]). “Offer of proof is not a term of art but its generally accepted meaning . . . is to summarize the substance or content of the evidence” … . In his motion in limine, defense counsel delineated the findings contained in the forensic reports and explained how they constituted “evidence of something other than . . . defendant having engaged in inappropriate and unlawful sexual activity with [the complainant].” This was a sufficient offer of proof under Williams (81 NY2d at 314).?People v Cerda, 2023 NY Slip Op 05305, CtApp 10-19-23
Practice Point: Here the interest-of-justice exception to the Rape Shield Law applied. The majority found that the exclusion of forensic evidence of complainant’s sexual activity (which did not implicate the defendant) violated defendant’s right to put on a defense.
OCTOBER 19, 2023
THE MAJORITY HELD THE APPELLATE DIVISION SHOULD HAVE CONSIDERED MOTHER’S APPEAL OF FAMILY COURT’S FINDING MOTHER DID NOT HAVE STANDING TO BRING HER CUSTODY/HABEAS CORPUS PETITION STEMMING FROM THE OUT-OF-STATE FATHER’S FAILURE TO RETURN THE CHILDREN; THE MAJORITY SENT THE CASE BACK TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE STANDING ISSUE; THREE DISSENTERS ARGUED FAMILY COURT ERRED WHEN IT DISMISSED THE HABEAS CORPUS PETITION BECAUSE NO CUSTODY ORDER WAS IN PLACE (CT APP).
The Court of Appeals, reversing the Appellate Division, over a three-judge comprehensive dissent, determined?the Appellate Division erred when it refused to consider mother’s appeal of the denial of her habeas corpus petition seeking the return of her children. The children visited father out-of-state and one of them was not allowed to return. The Appellate Division erred when it found it did not have subject matter jurisdiction for the appeal. The matter was sent back for consideration of mother’s standing to bring the habeas corpus petition. The dissenters argued the habeas corpus petition was erroneously dismissed by Family Court on the ground that mother did not have standing because there was no custody order in place for the children. But the majority wanted the development of a record on the standing issue:
… Family Court denied the mother’s applications both for sole custody and habeas corpus relief. As the parties who have appeared before us agree, the Appellate Division erred in dismissing the mother’s ensuing appeal for lack of subject matter jurisdiction. By dismissing the appeal upon a motion, and upon an undeveloped record, without full briefing and without providing all parties the opportunity to appear, the Appellate Division has rendered impossible meaningful appellate review of the weighty issues raised in this case. To the extent that the Appellate Division’s order on the motion to dismiss could be read, as the dissenters read it, to be a determination that the mother lacked standing to seek habeas corpus relief without an order of custody in place, the issue of standing did not impact the subject matter jurisdiction of the Appellate Division … . Regardless of whether that Court had the “power to reach the merits,” an issue on which we express no opinion, the Court did not lack the “competence to entertain” the appeal … . Therefore, we remit to the Appellate Division for an expeditious determination on the merits of the standing question presented herein and, if warranted, disposition of any other issues that the parties may raise.?Matter of Celinette H.H. v Michelle R., 2023 NY Slip Op 05303, CtApp 10-19-23
Practice Point: The majority held the Appellate Division should not have refused to consider mother’s appeal on the ground she did not have standing to bring her custody/habeas corpus petition. The Appellate Division did not lack subject matter jurisdiction. The matter was sent back for a ruling on the standing question.
OCTOBER 19, 2023
THE UNIVERSAL LIFE INSURANCE POLICY AT ISSUE WAS NOT SUBJECT TO INSURANCE LAW 3203(A)(2) WHICH REQUIRES A PROPORTIONAL REFUND WHEN THE INSURED DIES DURING THE PREMIUM PERIOD (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Singas, answering a certified question from the Second Department, determined that the universal life policy at issue was not subject to Insurance Law 3203(a)(2) which requires a proportional refund of a paid life insurance premium when the insured dies during the period covered by the premium. Universal life policies are substantively different from term or whole life policies. The court explained the unique aspects of universal life insurance:
Universal life insurance is distinct from term and whole life insurance. To maintain coverage under a term or whole life policy, the policyholder must pay fixed, periodic premiums. A universal life insurance policy does not have a fixed premium—instead, the policyholder can make a payment in any amount, at any time, subject to certain conditions specified in the policy. These payments are deposited in a “cash value account,” also known as a “policy account,” an interest-earning account administered by the insurer. The insurer deducts from the policy account the cost of insurance (COI), which varies from month to month based on variables including the insurer’s total exposure, any administrative fees, and other required payments from the policy account. The remaining funds in the policy account can grow tax-free over time based on an interest rate set by the insurer and can fund future deductions. Universal life insurance policyholders can typically add funds to the policy account at any time and in any amount. Policyholders often choose—but are not required—to pay a “planned premium,” which is a periodic payment often designed, but not guaranteed, to keep the policy in force. A failure to pay a planned premium does not result in termination or lapse of the policy so long as the funds in the policy account are sufficient to cover the deductions. Depending on the terms of the specific policy, the policyholder may also be able to withdraw funds or take loans against the policy value as long as sufficient funds remain to cover the deductions.?Nitkewicz v Lincoln Life & Annuity Co. of N.Y., 2023 NY Slip Op 05302, CtApp 10-19-23
Practice Point: Here the universal life insurance policy was not subject to Insurance Law 3202(a)(2) which requires a proportional refund of the premium when the insured dies during the premium period.
Practice Point: The unique aspects of a universal life insurance policy versus a term or whole life policy clearly explained.
OCTOBER 19, 2023
EXPERT EVIDENCE ABOUT THE EFFECT OF A DRUG MIXED WITH ALCOHOL ON DEFENDANT’S ABILITY TO FORM THE INTENT TO COMMIT MURDER AND ASSAULT SHOULD HAVE BEEN ADMITTED; DEFENDANT SHOULD HAVE BEEN ALLOWED TO LAY A FOUNDATION TO QUALIFY AN EMAIL WHICH INCLUDED HEARSAY AS A BUSINESS RECORD; NEW TRIAL ORDERED.
The Third Department, reversing defendant’s attempted murder and assault convictions, determined expert testimony explaining the effects of a drug taken by the defendant along with alcohol should have been admitted. In addition, an email in which a police officer, who was not at the scene, referred to the defendant’s condition as “highly intoxicated” should not have been excluded as hearsay. If the document had been qualified as a business record, it would have been admissible. The defendant should have been given an opportunity to establish a foundation for the admissibility of the email:
As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” … . The criteria to be used is “whether the proffered expert testimony ‘would aid a lay jury in reaching a verdict’ ” … , however, and the testimony proffered here regarding the effect of combined clonazepam and alcohol use would undoubtedly be useful to a lay jury in assessing “the ability of a defendant to form the intent to commit a crime following drug and alcohol consumption” … . As the Court of Appeals explained when presented with a comparable situation, while “jurors might be familiar with the effects of alcohol on one’s mental state, the combined impact of” alcohol and other drugs “on a person’s ability to act purposefully cannot be said as a matter of law to be within the ken of the typical juror” … . *
County Court erred in refusing to allow defendant to question the author of the preliminary investigation report describing defendant as “highly intoxicated” and then declining to admit the document into evidence on hearsay grounds because its author was not present on the night of the incident. Defendant must be afforded an opportunity to establish the proper foundation to qualify the email as a business record within the meaning of CPLR 4518 and, if defendant is successful in that effort, the fact that its author lacked personal knowledge of defendant’s intoxication goes to the weight, not the admissibility, of the statements therein … .?People v Mawhiney, 2023 NY Slip Op 05289, Third Dept 10-19-23
Practice Point: Where an issue is beyond the ken of an average juror, here the effect of a drug and alcohol combination on the defendant’s ability to form intent, expert testimony should be admitted.
Practice Point: Here an email by a police officer who was not at the scene of the shooting referred to the defendant as “highly intoxicated.” Although the statement is hearsay, the email may be admissible if it is demonstrated to be a business record.
OCTOBER 19, 2023
DEFENDANT WAS NOT GIVEN NOTICE OF SOME OF THE EVIDENCE RELIED ON BY COUNTY COURT FOR THE SORA RISK ASSESSMENT; THE MATTER WAS REMANDED FOR A NEW HEARING (THIRD DEPT).
The Third Department, reversing (modifying) County Court, determined defendant was not given notice of some of the grounds County Court relied?upon?for an upward departure re: defendant’s SORA risk-level assessment. That constituted a violation of defendant’s right to due process:
While … defendant [was] on notice that his persistent sexually-motivated criminal conduct would be relied upon by the People as a factor for upward departure, there is no similar indication that his concurrent conviction for failure to register along with the facts underlying his juvenile delinquency adjudication would be considered … . … “[D]efendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which the People, and consequently County Court, would rely in considering that relief … . … [T]the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People specific to their request for such relief.?People v Maurer, 2023 NY Slip Op 05290, Third Dept 10-19-23
Practice Point: Due process requires that a defendant be notified of all of the evidence which will be relied upon by the People and the court for a SORA risk assessment.
OCTOBER 19, 2023
THE PLAINTIFF’S EXPERT’S ASSERTION THAT THE FAILURE TO DIAGNOSE ATHEROSCLEROTIC CARDIOVASCULAR DISEASE PROXIMATELY CAUSED DECEDENT’S PREMATURE DEATH WAS SUFFICIENT TO RAISE A QUESTION OF FACT ON CAUSATION IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit raised a question of fact whether defendants’ failure to diagnose plaintiff’s decedent’s atherosclerotic cardiovascular disease proximately caused decedent’s premature death:
… Supreme Court properly determined that the affirmation of the defendants’ expert established, prima facie, that the treatment provided by the defendants was not a proximate cause of the decedent’s alleged injuries … . However, … the affirmation of the plaintiff’s expert, wherein the expert opined to a reasonable degree of medical certainty that the defendants’ departures from accepted standards of medical care proximately caused the decedent to die prematurely … , as a result of atherosclerotic cardiovascular disease, was sufficient to raise an issue of fact with respect to causation … .?Persuad v Hassan, 2023 NY Slip Op 05279, Second Dept 10-18-23
Practice Point: Here plaintiff alleged defendants’ failure to diagnose decedent’s atherosclerotic cardiovascular disease constituted medical malpractice. Plaintiff’s expert raised a question of fact on causation by asserting the failure to diagnose the disease proximately caused decedent’s premature death.
OCTOBER 18, 2023
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PURSUANT TO EXECUTIVE ORDERS RESPONDING TO THE COVID-19 PANDEMIC, THE TIME BETWEEN THE FILING OF A FELONY COMPLAINT AND ARRAIGNMENT ON AN INDICTMENT WAS EXCLUDED FROM THE SPEEDY TRIAL CLOCK; HERE THE DEFENDANT’S MOTION TO DIMSISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing County Court, determined the COVID-19 toll specific to CPL 30.30 and 190.80 applied and the People, therefore, did not violate the speedy trial statute:
In response to the COVID-19 pandemic, on December 30, 2020, former Governor Andrew Cuomo issued Executive Order No. 202.87, which provided that “[s]ection 30.30 and [s]ection 190.80 of the criminal procedure law are suspended to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled” (9 NYCRR 8.202.87). Successive executive orders extended Executive Order No. 202.87 through May 23, 2021 (see 9 NYCRR 8.202.87-8.202.106).
Upon renewal, the County Court should have denied that branch of the defendant’s omnibus motion which was to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. Contrary to the determination of the court, Executive Order No. 202.87, while in effect, constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity for a toll in each particular case … .?People v Marino, 2023 NY Slip Op 05273, Second Dept 10-18-23
Practice Point: Here the time between the filing of the felony complaint and arraignment on the indictment was excluded from the speedy trial clock pursuant to COVID-19 pandemic Executive Orders.
OCTOBER 18, 2023
PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE; DEFENDANT DRIVER IS EXPECTED TO SEE WHAT SHOULD BE SEEN; WHETHER PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT SHOULD NOT HAVE BEEN CONSIDERED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this vehicle-pedestrian accident case should have been granted. Whether plaintiff was contributorily negligent should not have been considered:
… [P]laintiff, who was wearing a bright green safety vest, was standing at or near the sideview mirror of the cab while the cab was stopped at a tollbooth when the cab pulled forward and came into contact with the plaintiff’s foot or ankle … . In opposition, the defendants failed to raise a triable issue of fact. Although the Supreme Court made a determination that, based on the evidence presented, a jury could determine whether the plaintiff was “vigilant” under the circumstances, that is immaterial to the plaintiff’s entitlement to summary judgment on the issue of liability in this case. “To be entitled to summary judgment on the issue of a defendant’s liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence” … .
… [P]laintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence on the issue of the defendants’ liability, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f] …).?Vasquez v Vullis Corp, 2023 NY Slip Op 05286, Second Dept 10-18-23
Practice Point: Here plaintiff was struck by defendant’s car. At the summary judgment stage, whether plaintiff was contributorily negligent is not relevant. Defendant driver was expected to see what should have been seen.
OCTOBER 18, 2023
A COMPLAINT THAT IS NEVER SERVED DOES NOT CONSTITUTE AN “ACTION;” HERE A PRIOR COMPLAINT WAS NEVER SERVED; THEREFORE THE INSTANT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS ANOTHER IDENTICAL ACTION (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the complaint in this traffic accident case should not have been dismissed because it was identical to a prior action. The first complaint was never served so there was no prior action:
CPLR 3211(a)(4) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against [them] on the ground that . . . there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” However, a complaint must have been served in that other action, otherwise it is not “another action,” or a “prior action pending” … within the meaning of CPLR 3211(a)(4) … . Here, it is undisputed that the complaint in the prior action was not served.?Quinones v Z & B Trucking, Inc., 2023 NY Slip Op 05282, Second Dept 10-18-23
Practice Point: A complaint which is never served does not constitute an “action.” The subsequent identical complaint should not have been be dismissed on the ground there was a prior identical action.
OCTOBER 18, 2023
THE EXECUTOR WAS ENTITLED TO A HEARING ON HIS OBJECTIONS TO THE FEES AND DISBURSEMENTS AWARDED THE GUARDIAN OF DECEDENT’S PERSON AND PROPERTY; THE EXECUTOR WAS ENTITLED TO DISCOVERY PURSUANT TO CPLR 408 IN THE SPECIAL PROCEEDING (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the executor of decedent’s estate (Oppedisano) was entitled to a hearing and discovery with respect to the fess and disbursements awarded to the guardian of decedent’s person and property:
… [T]here are disputed issues of fact as to the accuracy and completeness of the guardian’s final account, and whether the guardian failed to adequately investigate the alleged misappropriation of the decedent’s assets and should be denied fees and/or surcharged for breaching his fiduciary duties. Under such circumstances, the Supreme Court erred in denying Oppedisano’s objections to the guardian’s final account without conducting a hearing … .
Pursuant to CPLR 408, leave of court generally is required for disclosure in a special proceeding … .?Insofar as discovery tends to prolong a case, and therefore is inconsistent with the summary nature of a special proceeding, such disclosure is granted only where it is demonstrated that there is need for such relief … . When leave of court is granted, disclosure takes place in accordance with CPLR 3101(a), which generally provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action” … . The Court of Appeals has interpreted the phrase “material and necessary” liberally as requiring, upon request, disclosure “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … . *
Oppedisano demonstrated that the requested disclosure was material and necessary to establishing his objections that the guardian’s final account was inaccurate and/or incomplete and that the guardian breached his fiduciary duties and should be denied fees and/or surcharged, and there was no contravening demonstration that the proposed discovery would be prejudicial or unduly burdensome, would violate confidentiality, or would unduly delay the case.?Matter of?Giuliana M. (DeCarolis), 2023 NY Slip Op 05262, Second Dept 10-18-23
Practice Point: Here the executor was entitled to a hearing on his objections to the fees and disbursements awarded decedent’s guardian and was entitled to discovery pursuant to CPLR 408. In a special proceeding discovery is by leave of court.
OCTOBER 18, 2023
PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED PURSUANT TO THE ADVOCATE-WITNESS RULE, CRITERIA EXPLAINED (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s (Gamez’s) counsel should not have been disqualified pursuant to the advocate-witness rule:
“[T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. 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, and the movant bears the burden on the motion” … . A party moving to disqualify counsel on the ground that he or she may be called as a witness must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party … . “Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” … . Here, Lopez [defendant] failed to demonstrate that any anticipated testimony by Gamez’s counsel would be necessary to Lopez’s case and that such testimony would be prejudicial to Gamez … .?Gamez v Lopez, 2023 NY Slip Op 05250, Second Dept 10-18-23
Practice Point: The criteria for the disqualification of counsel pursuant to the advocate-witness rule were not met here. The testimony of the opposing party’s counsel must be necessary to the moving party’s case, and the testimony must be prejudicial to the opposing party.
OCTOBER 18, 2023
A NYC REGULATION REQUIRES FOR-HIRE VEHICLES TO BE WITHIN 12 INCHES OF THE CURB WHEN PICKING UP OR DISCHARGING PASSENGERS; THE DRIVER STOPPED TWO FEET FROM THE CURB AND PLAINTIFF FELL TRYING TO GET INTO THE VEHICLE; THE NEGLIGENCE ACTION AGAINST THE UBER DRIVER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the negligence action against the driver and owner of an UBER vehicle should not have been dismissed. The driver stopped two feet from the curb and plaintiff tripped trying to get into the vehicle. A NYC regulation requires vehicles-for-hire to be within 12 inches of the curb:
“To hold a defendant liable in common-law negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) that the breach constituted a proximate cause of the injury” … ? “Although the issue of proximate cause is generally one for the finder of fact, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … .
“A common carrier owes a duty to a passenger to provide a reasonably safe place to board and disembark its vehicle” … . 34 RCNY 4-11(c) requires taxis and for-hire vehicles to be within 12 inches of the curb when picking up or discharging passengers.?Porcasi v Oji, 2023 NY Slip Op 05281, Second Dept 10-18-23
Practice Point: Here the NYC regulation requiring for-hire vehicle to be within 12 inches of the curb when picking up a passenger created a duty on the part of the driver which was breached when the driver stopped two-feet from the curb. The defendant driver did not demonstrate the breach was not the proximate cause of plaintiff’s fall and did not demonstrate the driver’s action merely furnished a condition for the fall. Therefore there are questions of fact for the jury.
OCTOBER 18, 2023
PLAINTIFF BANK DID NOT START PROCEEDINGS TO ENTER A DEFAULT JUDGMENT WITHIN ONE YEAR AND DID NOT PRESENT AN ADEQUATE EXCUSE FOR THE DELAY; THE MOTION TO DISIMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not seek a default judgment within one year and did not offer a reasonable excuse for the delay. Therefore there was no need for the court to consider whether plaintiff had a meritorious cause of action. The complaint should have been dismissed:
CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” “The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” … . …
… [T]his matter was released from the settlement conference part in December 2011, and that the plaintiff failed to take steps to initiate proceedings for the entry of a default judgment by moving for leave to enter a default judgment and for an order of reference until March 2013, “which was too late for the plaintiff to ‘manifest an intent not to abandon the case'” … . … [Plaintiff] offered only vague, conclusory, and unsubstantiated assertions which were insufficient to excuse the plaintiff’s delay in moving for leave to enter a default judgment … .
Since [plaintiff] failed to proffer a reasonable excuse for the plaintiff’s delay, this Court need not consider whether the plaintiff had a potentially meritorious cause of action … .?Citimortgage, Inc. v Kimmerling, 2023 NY Slip Op 05246, Second Dept 10-18-23
Practice Point: Pursuant to CPLR 3215(c). if the plaintiff does not start proceedings to enter a default judgment within a year and does not offer an adequate excuse for the delay, the complaint must be dismissed. There is no need for the court to consider whether plaintiff has a meritorious cause of action.
OCTOBER 18, 2023
IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE FAMILIARITY WITH THE APPLICABLE STANDARD OF CARE, WAS SPECULATIVE AND CONCLUSORY AND DID NOT ADDRESS ALL THE ASSERTIONS MADE BY DEFENDANTS’ EXPERTS; THE DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the affidavit from plaintiff’s expert did not demonstrate familiarity with the applicable standard of care, was speculative and conclusory, and did not address all the allegations raised by defendants’ experts:
… [T]he plaintiff failed to raise a triable issue of fact by submitting a redacted physician’s affidavit. “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge[,] or experience” necessary to establish the reliability of his or her opinion … ?Here, the redacted physician’s affidavit failed to lay the requisite foundation for the affiant’s familiarity with the applicable standard of nursing care … . Moreover, the opinions of the plaintiff’s expert that the defendants deviated from the applicable standard of care were speculative, conclusory, and nonresponsive to the specific assertions raised by the defendants’ experts … .?Blank v Adiyody, 2023 NY Slip Op 05243, Second Dept 10-18-23
Practice Point: In a med mal action, in the context of a summary judgment motion, an expert’s affidavit must demonstrate familiarity with the applicable standard of care, must not be speculative or conclusory, and must address all the assertions made by the opposing party’s expert(s).
OCTOBER 18, 2023
EVEN THOUGH THE DEBTOR TRANSFERRED THE PROPERTY TO THE NON-DEBTOR CODEFENDANT YEARS BEFORE FILING FOR BANKRUPTCY, THE BANKRUPTCY TOLLED THE FORECLOSURE STATUTE OF LIMITATIONS FOR THE ACTION AGAINST THE DEBTOR; THE TOLL DID NOT APPLY TO THE ACTION AGAINST THE NON-DEBTOR WHICH NEVER FILED FOR BANKRUPTCY (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Connolly, reversing (modifying) Supreme Court, determined the foreclosure statute of limitations was tolled by the bankruptcy stay for the action against the defendant who filed for bankruptcy, but not for the defendant to which the property was transferred (who did not file for bankruptcy):
This appeal requires us to examine whether the stay provided by section 362 of the 1978 Bankruptcy Code (11 USC § 362[a]) operates as a “statutory prohibition” under CPLR 204(a) to toll the statute of limitations to commence a mortgage foreclosure action against a defendant debtor who no longer owns the property that is the subject of the mortgage foreclosure action. We hold that the bankruptcy stay pursuant to subsection 362(a)(1) (see 11 USC § 362[a][1]) tolls the statute of limitations for commencing a mortgage foreclosure action against the defendant debtor, regardless of whether that defendant owns the property at the time of the bankruptcy filing.
This appeal also requires us to determine whether the bankruptcy stay pursuant to subsection 362(a) applies to a nondebtor codefendant to which the defendant debtor transferred the property years before filing for bankruptcy. On the record before this Court, the plaintiff failed to meet its burden of raising a question of fact as to whether the bankruptcy stay applied to the nondebtor codefendant.?Bank of N.Y. Mellon v DeMatteis, 2023 NY Slip Op 05242, Second Dept 10-18-23
Practice Point: Filing for bankruptcy tolls the foreclosure statute of limitations, even if the property had been transferred before the filing.
OCTOBER 18, 2023
THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability:
The purpose of prohibiting new theories of liability in notices of claim is to prevent prejudicing the city in its ability to timely investigate the claim and provide an adequate defense … . Contrary to defendants’ argument, to the extent the notice of claim alleges affirmative negligence, plaintiff did so in the first instance. Plaintiff’s original notice of claim alleged that his injuries were caused by New York City’s “negligent . . . design, maintenance, construction and installation . . .” of the “the traffic island/extra curb/bumper” in question. Plaintiff only adds that his injuries were related to the “design, installation, and maintenance” of the delineators and bollards which are specific elements of the traffic island. This addition only alleges specific facts related to the theories of liability contained in the original claim, unlike in cases cited by defendants … . Accordingly, we find that this amendment does not seek to assert a new theory of liability, and instead merely clarifies the facts alleged in the claim, as permitted by General Municipal Law § 50-e.?Burnes v City of New York, 2023 NY Slip Op 05221, First Dept 10-17-23
Practice Point: The motion to amend the notice of claim merely fleshed out the theory of negligence in the original notice and did not present a new theory. Therefore the motion should have been granted.
OCTOBER 17, 2023
FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT).
The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:
… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … .?Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23
Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.
OCTOBER 17, 2023
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