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IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined plaintiff was entitled to discovery of pre-accident repairs, but not to post-accident repairs:
Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the subject stairway, and a list of all employees and contractors that performed work on the subject stairway, for the period of two years prior to the date of the subject accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of this action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents … .
However, the Supreme Court erred in directing the defendant to disclose such records for the one-year period after the date of the accident. “Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case” … . “An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue” … . Here, there is no issue as to the maintenance and control of the subject stairway … . C.B. v New York City Tr. Auth., 2023 NY Slip Op 04650, Second Dept 9-20-23
Practice Point: Plaintiff in this stairway slip and fall case is entitled to discovery of pre-accident, but not post-accident, repairs.
PLAINTIFF DID NOT PROVE DEFENDANT RECEIVED AND RETAINED THE INVOICES; SUMMARY JUDGMENT ON THE ACCOUNT STATED CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the account stated and breach of contract causes of action. With respect to the elements of an “account stated” cause of action, the court wrote:
“An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due” … . “The agreement may be express or implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account” … . “In order to establish a prima facie case to recover on an account stated, the plaintiff must establish that it submitted invoices and that the defendant received and retained the invoices without objection for an unreasonable period of time” … .
Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law on its causes of action to recover on an account stated, as the plaintiff failed to present evidence showing that the plaintiff’s invoices for the amounts at issue were mailed to and received by the defendants … . In support of its motion, the plaintiff submitted an affidavit from its underwriting manager regarding the mailing of invoices. However, the affiant did not attest to personal knowledge of the mailings or of a standard office practice and procedure designed to ensure that items were properly addressed and mailed … . Alliance Natl. Ins. Co. v Hagler, 2023 NY Slip Op 04648, Second Dept 9-20-23
Practice Point: In order to prove an “account stated” cause of action, the plaintiff must prove the invoices were properly mailed to the the defendant, which includes proof of personal knowledge of the mailing procedure.
THE COMPLAINT AGAINST THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE GRAVES AMENDMENT; DEFENDANT LESSOR DID NOT DEMONSTRATE THE ALLEGATION THE CAR WAS NEGLIGENTLY MAINTAINED WAS “NOT A FACT AT ALL” (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff’s cause of action against the lessor of the car involved in the accident (Rallye) should not have been dismissed pursuant to the Graves Amendment. Defendant lessor did not demonstrate the allegation the car was negligently maintained was “not a fact at all:”
“Pursuant to the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” … .
In considering a motion pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Further, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it,” dismissal should not eventuate … .
Here, contrary to the defendants’ contention, an affidavit from Rallye’s employee, who averred that Rallye’s vehicle was in good working condition at the time it allegedly was rented to Orphanides [the defendant driver], did not show that the plaintiff’s allegation of negligent maintenance on the part of Rallye was not a fact at all … . Holmquist v Orphanides, 2023 NY Slip Op 04660, Second Dept 9-20-23
Practice Point: In the context of a motion to dismiss, an affidavit stating that the leased car involved in the accident was in good working order will not, pursuant to the Graves Amendment, defeat a complaint which alleges the leased car was negligently maintained The affidavit does not establish the negligent-maintenance allegation is “not a fact at all.”
PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE “GOOD CAUSE” FOR AN EXTENSION OF TIME FOR SERVICE OF PROCESS, BUT DID DEMONSTRATE ENTITLEMENT TO AN EXTENSION IN THE “INTEREST OF JUSTICE” (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of process in this foreclosure action should have been granted. Although plaintiff did not demonstrate “good cause” for the failure to timely serve, the motion met the criteria for an extension in the interest of justice:
“Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice” … . “Good cause and interest of justice are two separate and independent statutory standards” … . “Good cause requires a showing of reasonable diligence in attempting to effect service” … . “[I]n deciding whether to grant a motion to extend the time for service in the interest of justice, the court must carefully analyze the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter” … . Under the interest of justice standard, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to [the] defendant” … .
Here, the plaintiff failed to demonstrate good cause for an extension of time to serve the defendant under CPLR 306-b. In support of the motion, the plaintiff offered nothing more than the affidavit of service of its process server. While a process server’s affidavit of service creates a presumption of proper service, the Supreme Court had already determined that the defendant presented sufficient evidence to warrant a hearing on the validity of service of process … .
However, the plaintiff established its entitlement to an extension of time to serve the defendant with the summons and complaint in the interest of justice. The plaintiff established that the action was timely commenced, that service was timely attempted and was perceived by the plaintiff to have been made within 120 days after the commencement of the action, and that the plaintiff promptly sought an extension of time to serve the defendant with the summons and complaint after the defendant challenged service on the ground that it was defective. The plaintiff also established that the statute of limitations had expired when the plaintiff made its motion to extend the time to serve, that the plaintiff had a potentially meritorious cause of action, and that there was no identifiable prejudice to the defendant attributable to the delay in service … . Countrywide Home Loans, Inc. v Lyons, 2023 NY Slip Op 04654, Second Dept 9-20-23
Practice Point: If you can’t demonstrate “good cause” for an extension of time for service of process, you still may be entitled to an extension in the “interest of justice.”
DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK FOR SPOLIATION OF EVIDENCE; VIDEO OF A FEW SECONDS BEFORE AND AFTER THE FALL WERE PRESERVED, BUT THE REST OF THE VIDEO WAS OVERWRITTEN (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant’s answer in this slip and fall case should not have been struck for spoliation of evidence. Defendant preserved video of the slip and fall which happened during a school dance—a few seconds before and after the fall. But the rest of the video was overwritten 21 days after the fall as part of a routine procedure. Defendant did not have notice of a potential lawsuit at the time the video was overwritten:
“‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126′” … . “‘A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” … .
… The plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten … . The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant’s normal business practices.
… [D]efendant’s preservation of only a portion of the surveillance footage does not indicate a culpable state of mind … as the defendant’s representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident consistent with ordinary business practices. The assistant principal’s affidavit was also sufficient to provide the court with a “basis to find that the search for [the surveillance footage] had been a thorough one [and] that it had been conducted in a good faith effort to provide [the surveillance footage] to the plaintiff” … . Similarly, no evidence indicates that the defendant was negligent in failing to preserve the additional surveillance footage … . Moreover, the plaintiff did not demonstrate that the defendant’s failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim … . M.B. v St. Francis Preparatory Sch., 2023 NY Slip Op 04651, Second Dept 9-20-23
Practice Point: After video of the fall and a few seconds before and after the fall was preserved by the defendant, the remainder of the video was overwritten in accordance with usual procedure. Defendant was not on notice of a potential lawsuit when the video was overwritten. In the absence of evidence of bad faith, defendant’s answer should not have been struck for spoliation of evidence.
IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST DEPARTMENT NOTED THE INADEQUACY OF THE PROOF PRESENTED BY ASSIGNED COUNSEL AT THE FIRST HEARING AND CONSIDERED “NEW” FACTS WHICH WERE NOT PART OF THE RECORD ON APPEAL (FIRST DEPT).
The First Department, reversing Family Court over a detailed and comprehensive dissent, determined mother was entitled to a new hearing on her petition to relocate to North Carolina because her assigned counsel did not adequately present evidence of the financial necessity of the move. The dissent would grant the petition to relocate based on the existing record:
… [A]s the attorney for the child argues on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted by order entered November 15, 2022 and continued by order entered April 20, 2023), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. Specifically, … the mother attests that counsel failed to adequately present evidence of the financial necessity that supports her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that have occurred since the court’s September 6, 2022 order, we reverse the court’s denial of the mother’s petition and remand for a new hearing to determine what is in the child’s best interests … . Although the facts warranting a new hearing are outside the record on appeal, given that changed circumstances have particular significance in child custody matters, we take notice of the new facts to the extent they indicate that the record is no longer sufficient to determine the mother’s relocation petition … . Matter of Emily F. v Victor P., 2023 NY Slip Op 04634, First Dept 9-14-23
Practice Point: Here the First Department considered “new” facts which were not part of the record on appeal in determining there should be a new hearing on mother’s petition to relocate.
REPORTER WHO INTERVIEWED A MURDER SUSPECT WAS ENTITLED TO A WRIT OF PROHIBITION PREVENTING THE ENFORCEMENT OF A SUBPOENA TO TESTIFY AT THE SUSPECT’S TRIAL; THE PEOPLE DID NOT MEET THE CRITERIA OF CIVIL RIGHTS LAW 79-H, THE NEW YORK SHIELD LAW, WHICH PROTECTS REPORTERS FROM SUBPOENAS WHEN THE REPORTER’S TESTIMONY IS NOT “CRITICAL OR NECESSARY” TO THE PEOPLE’S CASE (THIRD DEPT).
The Third Department, in a full-fledged opinion by Justice Fisher, determined the petitioner, a reporter who had interviewed a murder suspect (Ramsaran) prior to his conviction (which was overturned), was entitled to a writ of prohibition preventing the enforcement of a subpoena to testify at the suspect’s second murder trial The People did not meet the criteria required by Civil Rights Law 79-h known as the New York Shield Law:
… [P]etitioner has made a sufficient showing that, if in error, respondent (County Court Judge) exceeded his jurisdiction and power in denying petitioner’s motion to quash the subpoena and in ordering her to testify to the information that she obtained in her capacity as a journalist in contravention of Civil Rights Law § 79-h. * * *
To overcome the qualified privilege afforded to petitioner under the New York Shield Law, it was incumbent on the People to make “a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source” … . * * *
Even accepting that the information was “highly material and relevant” to the prosecution of Ramsaran, the People failed to establish that it was “critical or necessary.” There is a multitude of other evidence against Ramsaran, including the statements that he made during his telephone calls to 911, his girlfriend and to the police, as well as DNA evidence of the blood found on his clothes and the victim’s van. Contrary to the People’s contentions, Ramsaran’s statements during the interview do not contradict any of his other statements, but rather corroborate other available evidence against him … . Matter of Canning v Revoir, 2023 NY Slip Op 04623, Third Dept 9-14-23
Practice Point: This is a rare example of the granting of a writ of prohibition preventing a judge from enforcing a subpoena. The subpoena sought the testimony of a reporter who had interviewed a murder suspect. The People did not meet the criteria of the New York Shield Law which protects reporters from subpoenas when the reporter’s testimony is not “critical or necessary” to the People’s case.
A DEFAULTING PARTY ADMITS ALL THE ALLEGATIONS IN THE COMPLAINT; THEREFORE LIABILITY ISSUES SHOULD NOT BE CONSIDERED AT THE INQUEST (SECOND DEPT).
The Second Department, reversing Supreme Court, determined liability issues should not have been considered at the inquest where defendant had defaulted:
By defaulting, the defendant admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Znojewski v Mamczur, 2023 NY Slip Op 04617, Second Dept 9-13-23
Practice Point: A defaulting party admits the allegations in the complaint. Liability issues are off limits at an inquest to determine damages.
PLAINTIFF WAS INJURED WHEN HE ATTEMPTED TO AVOID A FALL FROM A SCAFFOLD WHEN THE PLANK HE WAS STANDING ON SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he attempted to avoid a fall from a scaffold when a plank he was standing on shifted:
… [T]he plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability on so much of the cause of action alleging a violation of Labor Law § 240(1) through the submission of the plaintiff’s affidavit and a copy of the transcript of his deposition testimony “which demonstrated that the scaffold failed to afford him proper protection for the work being performed, and that this failure was a proximate cause of his injuries” … . In opposition, the defendants failed to raise a triable issue of fact. “They did not offer any evidence, other than mere speculation, to refute the plaintiff[‘s] showing or to raise a bona fide issue as to how the accident occurred” … . The defendants’ contention that the alleged injuries were only tangentially related to the effects of gravity and/or an elevation-related risk is without merit … . Wilson v Bergon Constr. Corp., 2023 NY Slip Op 04616, Second Dept 9-13-23
Practice Point: Apparently the plaintiff was injured when he attempted to avoid a fall from a scaffold. It is not clear whether plaintiff actually fell. Even so, he was entitled to summary judgment on the Labor Law 240(1) cause of the action.
A PROPERTY OWNER DOES NOT HAVE A DUTY TO INSTALL A NON-SLIP FLOOR OR A GRAB BAR IN A SHOWER STALL; THEREFORE THE NEGLIGENCE AND NUMEROUS OTHER CAUSES OF ACTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
The Second Department, reversing Supreme Court in this slip and fall case, determined that the facts alleged, a shower-stall floor that was slippery when wet, and the absence of a grab bar in the shower, did not state a cause of action for negligence because the allegations did not describe a duty owed to plaintiff:
… [T]he complaint alleged as defects that the shower floor was slippery and there were no grab bars in the shower stall where Royanne Weiss alleged she slipped and fell. However, there is no common-law or statutory requirement imposing a duty upon the defendants to provide nonslip surfacing or grab bars in a shower or shower stall … . Nor is there a duty to install such devices where the shower and shower stall were not alleged to be defective or hazardous for ordinary use . Accordingly, the Supreme Court should have granted dismissal of the cause of action alleging common-law negligence pursuant to CPLR 3211(a)(7). Weiss v Vacca, 2023 NY Slip Op 04613, Second Dept 9-13-23
Practice Point: Instead of describing the slippery floor of the shower stall and the absence of a grab bar as open and obvious conditions which do not give rise to liability, the Second Department held that the property owner did not have a duty to provide a non-slip floor or a grab bar in the shower stall.
WHATEVER TIME REMAINS ON THE APPLICABLE STATUTE OF LIMITATIONS WHEN THE COVID TOLL BEGAN IS ALL THAT IS LEFT WHEN TO TOLL IS LIFTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined that, although the statute of limitations in this personal injury action was subject to the COVID toll, the three-year statute just picked up at the end of the toll where it left off at the beginning of the toll. Therefore plaintiff was not entitled to simply add on the length of the toll (228 days) when the toll was lifted. Plaintiff only had 152 days left when the toll was lifted:
… [D]ue to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to file the instant action was tolled between March 20, 2020, and November 3, 2020, a period of 228 days … . However, contrary to the plaintiff’s contention, she did not have an additional 228 days, the length of the tolling period, after the toll’s expiration to commence the action. Instead, the remaining 152 days left on her three-year statute of limitations started to run after the toll was lifted on November 4, 2020 … . Since this action was commenced on April 19, 2021, the plaintiff did not timely commence the action within t…he statute of limitations that expired on April 4, 2021…. . Ruiz v Sanchez, 2023 NY Slip Op 04608, Second Dept 9-13-23
Practice Point: Whatever time remains on the applicable statute of limitations when the COVID toll began is all that is left when the COVID toll is lifted.
CONFLICTING EVIDENCE ABOUT WHETHER DEFENDANT WAS MADE AWARE OF THE DANGEROUS CONDITION PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the Department of Education (DOE) did not demonstrate a lack of constructive knowledge of the condition of a cart used by plaintiff teacher to move materials out of a classroom. The cart stopped suddenly and the plaintiff’s foot was injured. There was conflicting evidence about whether plaintiff and others had made the DOE aware of the defective condition of the cart:
… [T]he defendants failed to establish, prima facie, that the DOE did not have constructive notice of the allegedly dangerous condition of the cart that caused the plaintiff’s injuries. In support of their motion, the defendants submitted, among other things, a transcript of the plaintiff’s deposition testimony. At her deposition, the plaintiff testified that in September 2015, approximately five months before she was injured, she complained about the condition of the cart to the school principal. The plaintiff further testified that in January 2016, approximately one month before the accident, her supervisor, an assistant principal at the school, observed the plaintiff “struggling” to use the cart, which “wasn’t working properly.” According to the plaintiff, her supervisor advised that she would speak with the principal about the issue. The DOE also submitted a transcript of the deposition testimony of the plaintiff’s supervisor, who testified that prior to the accident, she did not recall the plaintiff making any complaints specifically about the condition of the cart. This conflicting testimony raised triable issues of fact as to credibility and whether the DOE had constructive notice of the allegedly dangerous condition of the cart … . Rossi v City of New York, 2023 NY Slip Op 04607, Second Dept 9-13-23
Practice Point: Plaintiff, a teacher, alleged she was injured when a cart used to move materials stopped suddenly. There was conflicting evidence whether defendant had been made aware of the defective condition of the cart. Therefore defendant was not entitled to summary judgment.
DEFENDANTS IN THIS TRAFFIC ACCIDENT CASE WERE ENTITLED TO DISCOVERY OF GEOGRAPHICAL DATA (SPEED, LOCATION) RECORDED ON PLAINTIFF’S CELL PHONE DURING A THREE-HOUR PERIOD LEADING UP TO THE TIME OF THE ACCIDENT (SECOND DEPT).
The Second Department, modifying Supreme Court in this traffic accident case, determined the defendants’ motion to inspect and collect geographical data recorded on plaintiff’s cell phone leading up to the time of the accident was properly granted but should have been limited to a specific time (1 to 4 pm):
… [T]he defendants’ motion papers sufficiently demonstrated that the production of the plaintiff’s cell phone for the inspection and collection of geographical data recorded on the device on the date of the accident may result in the disclosure of relevant evidence and was reasonably calculated to lead to the discovery of information bearing on the plaintiff’s claim … . The affidavit of the defendants’ forensic expert demonstrated, among other things, that the plaintiff’s cell phone would have recorded data regarding the plaintiff’s speed and location before and at the time of the accident, which, under the particular circumstances presented, was relevant to the plaintiff’s contention that the defendant driver was negligent in the operation of his vehicle … .
The Supreme Court, however, improvidently exercised its discretion in failing to limit the defendants’ inspection and collection of geographical data recorded on the plaintiff’s cell phone on the date of the accident. Under the circumstances, the defendants’ inspection and collection of geographical data from the plaintiff’s cell phone shall be limited to such data recorded between 1:00 p.m. and 4:00 p.m. on the date of the accident … . Pulgarin v Richmond, 2023 NY Slip Op 04605, Second Dept 9-13-23
Practice Point: Apparently a cell phone in a car records speed and location data which is discoverable in a traffic accident case.
IT WAS AN ABUSE OF DISCRETION TO DENY FATHER’S MOTION TO VACATE HIS DEFAULT IN THIS CUSTODY CASE; THE USUAL RULES FOR VACATION OF A DEFAULT ARE RELAXED IN CHILD CUSTODY MATTERS (SECOND DEPT).
The Second Department, reversing Family Court, determined it was an abuse of discretion to deny father’s motion to vacate his default in this custody proceeding. The Second Department noted that the strict rules surrounding vacation of a default are relaxed in custody matters:
Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … , “the law favors resolution on the merits in child custody proceedings” … . Thus, the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … .
Under the circumstances presented here, including the brief period between the father’s default and his motion to vacate his default, and in light of the policy favoring resolutions on the merits in child custody proceedings, the Family Court improvidently exercised its discretion in denying the father’s motion to vacate the order of custody and parental access … entered upon his failure to appear … . Matter of Orobona v Cunningham, 2023 NY Slip Op 04594, Second Dept 9-13-23
Practice Point: Because resolution on the merits is the policy favored in child custody matters, the usual rules surrounding vacation of a default are relaxed.
PLAINTIFF WAS HIRED BY THE CITY TO INSTALL A SEWER AND DISCOVERED 45,000 TONS OF CONTAMINATED SOIL; DEFENDANT, WHO CAUSED THE CONTAMINATION, REFUSED TO REMEDIATE; PLAINTIFF, WHO REMEDIATED THE CONTAMINATION, STATED A CAUSE OF ACTION FOR UNJUST ENRICHMENT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the unjust-enrichment cause of action should not have been dismissed. Plaintiff was hired by the city to install a sewer. Plaintiff discovered 45,000 tons of contaminated soil in the process. Defendant, who was responsible for the contamination, refused to remediate. Plaintiff remediated the contamination and sued defendant for the cost. There was no contract between plaintiff and defendant, so the breach of contract action was properly dismissed. However, the complaint stated a cause of action for unjust enrichment:
“To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” … . “‘[T]he essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered'” … . “Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated” … .
Here, affording the complaint a liberal construction, we find that it sufficiently alleged that the defendant was unjustly enriched, at the plaintiff’s expense, by the plaintiff’s remediation of the contaminated soil, and that it would be against equity and good conscience to permit the defendant to retain what was sought to be recovered … . Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co., 2023 NY Slip Op 04566, Second Dept 9-13-23
Practice Point: When there is no contract between the parties, the unjust-enrichment theory may be viable, as it was in this case.
THE LETTER OF INTENT WAS NOT A BINDING REAL ESTATE CONTRACT; THE MOTION TO DISMISS THE BREACH OF CONTRACT, BASED ON “DOCUMENTARY EVIDENCE,” SHOULD HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the letter of intent was a non-binding agreement-to-agree, not a contract for the sale of real property. The letter of intent constituted “documentary evidence” which warranted dismissal of the breach of contract action:
… [T]he defendant submitted the letter of intent which conclusively established that the parties did not enter into a binding contract, but instead had a mere agreement to agree … . The letter of intent expressly stated that the letter was not contractually binding and expressly anticipated the future preparation and execution of a contract. Accordingly, the Supreme Court should have granted dismissal of so much of the complaint as was predicated upon allegations of breach of contract pursuant to CPLR 3211(a)(1). Krasnow v Catania, 2023 NY Slip Op 04584, Second Dept 9-13-23
Practice Point: This is a rare example of a successful motion to dismiss based on documentary evidence. The letter of intent was, by its terms, not a binding contract. Therefore the breach of contract action, based upon the letter of intent, should have been dismissed.
THE RULES OF THE ROAD APPLY TO BICYCLISTS; HERE THE BICYCLIST DARTED OUT INTO TRAFFIC FROM IN FRONT OF A PARKED VAN; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPARTMENT).
The Second Department, reversing Supreme Court, determined the rules of the road apply to bicyclists who suddenly dart out into traffic from in front of a parked car. Defendants’ motion for summary judgment should have been granted:
Vehicle and Traffic Law § 1143 provides that a driver entering or crossing a roadway “from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Vehicle and Traffic Law § 1231 provides that every person riding a bicycle upon a roadway “shall be subject to all of the duties applicable to the driver of a vehicle by this title.”
… [T]he defendants established … that the infant plaintiff negligently entered the roadway mid-block from in front of a parked van without yielding the right-of-way to the defendants’ vehicle, and that such negligence was the sole proximate cause of the accident. The evidence submitted in support of the motion, which included, inter alia, transcripts of the deposition testimony of the infant plaintiff, the defendant driver, and a nonparty witness, demonstrated that the defendant driver was traveling only 15 to 20 miles per hour, and had, at most, two seconds to react before the infant plaintiff’s bicycle struck the passenger side of the vehicle. Thus, the defendants demonstrated that the defendant driver was not negligent for failing to avoid colliding with the infant plaintiff … . A. B. v Waring, 2023 NY Slip Op 04565, Second Dept 9-13-23
Practice Point: Vehicle and Traffic Law section 1231 applies all the duties of a vehicle-driver to bicyclists. Here the bicyclist violated the Vehicle and Traffic Law by suddenly entering the lane of traffic from in front of a parked van. The defendant driver was not negligent.
IN THIS CONSTRUCTION ACCIDENT CASE, DEFENDANTS WERE ENTITLED TO COMPEL PLAINTIFF TO ANSWER DEPOSITION QUESTIONS ABOUT HIS DRUG AND ALCOHOL USE; THE INFORMATION MAY BE RELEVANT TO LIFE AND/OR WORK-LIFE EXPECTANCY (SECOND DEPT).
The Second Department, in this construction accident case, determined defendant’s were entitled to compel plaintiff to answer deposition questions about his alcohol and drug use:
“Although physician-patient communications are privileged under CPLR 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed his or her mental or physical condition in issue” … .
Here, the plaintiff asserted … damages claims for future economic loss, including loss of future wages, pension, annuity, and health insurance coverage, based upon certain work-life and life expectancy ages. These claims affirmatively placed at issue the plaintiff’s health and ability to work, and the plaintiff’s work-life expectancy … . In making life expectancy determinations in the course of awarding damages for future lost earnings, juries are permitted to make life expectancy determinations based upon statistical life expectancy tables, together with their own experience and the evidence they have heard in determining what the plaintiff’s life and/or work-life expectancy is, based upon the plaintiff’s health, life habits, employment, and activities … . Hogdahl v LCOR 55 Bank St., LLC, 2023 NY Slip Op 04582, Second Dept 9-13-23
Practice Point: In a personal injury case, evidence of plaintiff’s drug and alcohol use may be relevant to life and work-life expectancy (damages).
THE COMPLAINT ADEQUATELY ALLEGED THE COUNTY’S NEGLIGENT SUPERVISION OF PLAINTIFF WHILE SHE WAS IN FOSTER CARE; THE QUALIFIED IMMUNITY PURSUANT TO SOCIAL SERVICES LAW 419 IS NOT APPLICABLE (SECOND DEPT).
The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint adequately alleged the defendant county knew or should have known of plaintiff’s foster father’s propensity to commit child abuse. The qualified immunity pursuant to Social Services Law 419 does not apply to negligent supervision of children in foster care:
“[C]ounties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … .
Here, the complaint, which asserted that the abuse was foreseeable, inter alia, because the County knew or in the exercise of reasonable care should have known of the foster father’s propensity to engage in the sexual abuse of children, sufficiently alleged that the County had notice of the dangerous conduct at issue such that the abuse could reasonably have been anticipated … . Moreover, the complaint sufficiently alleged that the County was negligent in failing to ensure that proper safeguards were in place so as to ensure the safety of the plaintiff in the foster home … .
… [T]he County was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care … . Grabowski v Orange County, 2023 NY Slip Op 04580, Second Dept 9-13-23
Practice Point: In this Child Victim’s Act case, the complaint adequately alleged the county knew or should have known of her foster father’s propensity to commit child abuse. The qualified immunity in Social Services Law 419 does not apply to negligent supervision of children in foster care.
AN ELEVATED BOARDWALK WITH NO GUARDRAILS WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE VILLAGE WAS NOT LIABLE FOR PLAINTIFF BICYCLIST’S RIDING OFF THE BOARDWALK (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the village was not liable for plaintiff’s riding her bike off an elevated boardwalk. The condition (the elevated boardwalk) was deemed “open and obvious;”
A landowner has a duty to maintain its premises in a reasonably safe manner … . However, there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . “[T]o obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous” … .
Here, the evidence submitted by the Village in support of its motion, including a transcript of the plaintiff’s deposition testimony and photographs of the accident site, demonstrated, prima facie, that the condition of the elevated boardwalk was both open and obvious, and not inherently dangerous. The plaintiff’s testimony established, inter alia, that she was aware of the condition of the boardwalk, including that it was elevated, and that she had ridden her bicycle along the boardwalk without incident shortly prior to her accident … . Ferruzzi v Village of Saltaire, 2023 NY Slip Op 04578, Second Dept 9-13-23
Practice Point: Here the plaintiff, after riding her bike on an elevated boardwalk (no guardrails) for a while, rode off the boardwalk and was injured. The elevated boardwalk was deemed open and obvious and not inherently dangerous.
DEFENDANT’S UNSAFE LANE-CHANGE, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, WARRANTED SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff alleged defendant (Roman) suddenly attempted to change lanes in violation of the Vehicle and Traffic Law and struck plaintiff’s car. Defendant’s claim that he glanced quickly to the left as plaintiff was attempting to pass him did not raise a question of fact:
… [T]he plaintiff submitted a transcript of his testimony at a hearing pursuant to General Municipal Law § 50-h wherein he testified that while the vehicle that Roman was operating was traveling in the far right lane of a three-lane highway, Roman swerved into the vehicle the plaintiff was operating, which was traveling in the far left lane. This testimony established, prima facie, that Roman changed lanes before ascertaining that such movement could be made safely in violation of Vehicle and Traffic Law § 1128(a) … .
… Roman’s affidavit, wherein he stated that he quickly steered into the left lane after “glanc[ing]” to his left, when the vehicle operated by the plaintiff “apparently attempted to pass [him] quickly on the driver’s side,” did not establish a nonnegligent excuse for the happening of the accident … . Moreover, the defendants failed to demonstrate that the emergency doctrine was applicable … . Elfe v Roman, 2023 NY Slip Op 04575, Second Dept 9-13-23
Practice Point: The evidence that defendant struck plaintiff’s car making an unsafe lane change in violation of the Vehicle and Traffic Law (negligence per se) entitled plaintiff to summary judgment.
FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE DEPARTMENT OF MOTOR VEHICLES (DMV) DOES NOT, STANDING ALONE, ESTOP THE DEFENDANT FROM CONTESTING SERVICE OF PROCESS (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Warhit, reversing Supreme Court, after reviewing the caselaw in the state, determined the defendant was not estopped from contesting service of process based solely on his failure to update his address with the Department of Motor Vehicles (DMV) as required by Vehicle and Traffic Law 505 (5). Although the failure to update the address is a factor in determining whether estoppel applies, it cannot be the sole basis for estoppel. Here the defendant presented detailed evidence demonstrating that he no longer lived at the address on file with the DMV and there was no evidence he was deliberately evading service. Therefore a hearing on whether defendant was properly served was required:
The principal question presented on this appeal is whether an individual defendant’s failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles (hereinafter DMV) of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address. We answer that question in the negative. … [W]e hold that, while there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one’s address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine. Castillo-Florez v Charlecius, 2023 NY Slip Op 04570, Second Dept 9-13-23
Practice Point: Although the failure to update one’s address on file with the DMV can be a factor in determining whether a defendant should be estopped from contesting service of process, it cannot be the sole reason for applying the estoppel doctrine. There must be other evidence of a deliberate effort to evade service.
A 911 CALLER WHO PROVIDES ONLY HIS FIRST NAME IS AN ANONYMOUS INFORMANT AND PROVIDES THE POLICE WITH ONLY THE COMMON-LAW RIGHT TO INQUIRE (FOURTH DEPT).
The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the 911 call was from an anonymous informant, even though the caller provided his first name. Because the informant was anonymous, the information about a black man in an orange jacket carrying a handgun gave rise only to the common-law right to inquire. One of the officer’s approached with his gun drawn and the defendant ran, discarding the jacket and handgun:
As a preliminary matter, we conclude that the 911 caller, who identified himself only by a first name, was anonymous inasmuch as he provided no other information from which the police could identify or locate him , and he was not present at the scene when the police arrived Indeed, it is not clear from the record that the name by which the caller identified himself was the caller’s real first name. Under the circumstances, we analyze the propriety of the police conduct under the law applicable to tips from anonymous informants. * * *
… [T]he anonymous tip was simply that of a man with a gun at a particular location. It follows that the officer’s gunpoint stop of defendant was unlawful, as was the officers’ subsequent pursuit of defendant after he took flight. People v Johnson, 2023 NY Slip Op 04493, Fourth Dept 9-8-23
Practice Point: A 911 caller who only provides his first name is an anonymous informant. Any information provided by the caller triggers only a police officer’s common-law right to inquire. Here the officer approached with his gun drawn. The gun discarded when the defendant ran should have been suppressed.
PLAINTIFF STORE MANAGER FELL FROM A LADDER WHILE ATTEMPTING TO REPLACE CEILING TILES DAMAGED BY A LEAK IN THE ROOF; PLAINTIFF SUED THE BUILDING OWNER; THE LABOR LAW CAUSES OF ACTION WERE PROPERLY DISMISSED BUT THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court, determined the Labor Law causes of action in this ladder-fall case were property dismissed, but the common law negligence cause of action should not have been dismissed. Plaintiff, the manager of a Dunkin Donuts, fell from the ladder when attempting to replace ceiling tiles damaged by a leak in the roof. Plaintiff sued the building owner:
Labor Law § 241(6) applies only to a narrow class of protected workers engaged in “constructing or demolishing buildings in areas in which construction, excavation or demolition work is being performed” … . * * *
The Labor Law § 200 claim arises from the method of work, involving an inadequate ladder, but defendants exercised no supervisory control over the work, and therefore no liability attaches under Labor Law § 200 … .
… [T]he record raises triable issues of fact as to whether defendants had actual or constructive notice of an unsafe ceiling leak and whether the leak proximately caused plaintiff’s injury. Plaintiff alleged that the leak created a slippery condition on the ladder. Yousuf v Horace Plaza, LLC, 2023 NY Slip Op 04492, First Dept 9-7-23
Practice Point: Labor Law 241(6) applies only if plaintiff was injured constructing or demolishing a building. Labor Law 200 (re: method of work) applies only only when defendant exercises supervisory control over the work. Therefore the Labor Law causes of action did not apply to the store manager’s falling from a ladder while attempting to replace ceiling tiles damaged by a leak in the roof.
THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).
The First Department, reversing Supreme Court, determined the SORA court should not have reopened the SORA risk-level hearing to amend its prior risk-level ruling. The criteria for a motion to renew were not met and the other justifications for re-opening the hearing were not applicable:
… [T]here are three ways in which a court could amend its SORA determination…. First, a party may move for leave to renew. A court may grant a motion for leave to renew only where (1) the motion alleges new facts and (2) the movant provides reasonable justification for not offering those facts in the original proceedings (CPLR 2221[e][2], [3]; …). The court has discretion to determine what constitutes a reasonable justification … and to relax the requirements of CPLR 2221(e) in the interest of justice … . * * *
Second, a court has an inherent authority to reopen a hearing “to correct its own order to rectify a mistake of law or fact” on a SORA decision … . This inherent authority stems from the “overriding purposes and objectives of SORA” to, inter alia, “protect [] vulnerable populations and . . . the public from potential harm” …. .
Here, the motion court could not have acted based on its inherent authority because the motion court did not make a mistake in its initial decision … . * * *
Third, a new hearing can be ordered to give the People an opportunity to make an application for an upward modification where the People refrained from making that argument when the motion court assessed points which resulted in the defendant being assigned presumptively to the level sought by the People … . * * *
Here, the motion court properly gave the People time to respond to defendant’s assertions and the People chose to introduce the new materials only belatedly. People v Adams, 2023 NY Slip Op 04490, First Dept 9-7-23
Practice Point: The three ways a SORA motion court can amend a risk-level determination are described in detail. None were applicable here.
THE CRITERIA FOR LONG-ARM JURISDICTION BASED UPON A TORT COMMITTED “WITHIN THE STATE” CLARIFIED; NEW YORK DID NOT HAVE LONG-ARM JURISDICTION OVER THE OUT-OF-STATE INDIVIDUAL DEFENDANTS, MEMBERS OF AN LLC WHICH SOLD N95 MASKS TO THE NEW YORK PLAINTIFF; IT WAS ALLEGED THE QUALITY OF THE MASKS WAS MISREPRESENTED IN AN EMAIL TO THE NEW YORK PLAINTIFF (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Pitt-Burke, determined New York did not have long-arm jurisdiction over out-of-state individual defendants based upon an alleged misrepresentation in an email sent by defendants as principals of defendant LLC (RPP) to the New York plaintiff. RPP sold N95 masks to plaintiff. A picture of a mask sent in the email had the FDA-approval logo on the packaging. Plaintiff alleged the masks actually shipped were not FDA approved:
This appeal presents the opportunity to reaffirm this Court’s position on what constitutes a tort committed within the boundaries of this state for purposes of New York’s long-arm jurisdiction under CPLR 302(a)(2). … [W]e find that the language “within the state” in CPLR 302(a)(2), means that a nondomiciliary is only subject to New York’s long-arm jurisdiction under subsection (a)(2) when they have committed a tortious act, in person or through an agent, while physically present within the boundaries of this state. * * *
… [I]t is undisputed that the alleged fraudulent statements were made outside of New York and that the individual defendants communicated with plaintiff solely in their capacity as principals of RPP. Therefore, we find that plaintiff has failed to demonstrate a basis for imposing long-arm jurisdiction over the individual defendants pursuant to CPLR 302(a)(2), and the motion court should have granted the individual defendants’ motion to vacate the default judgment pursuant to CPLR 5015(a)(4) and dismissed the cause of action as against them pursuant to CPLR 3211(a)(8). In light of our determination, we need not reach the issue of whether the exercise of personal jurisdiction comports with due process or whether a discretionary vacatur was warranted as it relates to the individual defendants. SOS Capital v Recycling Paper Partners of PA, LLC, 2023 NY Slip Op 04480, First Dept 8-31-23
Practice Point: Here the criteria for long-arm jurisdiction based upon a tort committed in New York were clarified by the First Department.
THE EXPERT AFFIDAVITS SUBMITTED BY DEFENDANT HOSPITAL IN THIS MEDICAL MALPPRACTICE ACTION WERE CONCLUSORY AND DID NOT ADDRESS ALL OF PLAINTIFF’S ALLEGATIONS; THEREFORE SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
The First Department, reversing Supreme Court in this medical malpractice action, determined the expert affidavits were conclusory and did not address all the allegations made by plaintiff. Therefore defendant’s (St. Luke’s) motion for summary judgment should not have been granted:
The expert nurse and expert neurologist on whose affidavits St. Luke’s relied merely averred in a conclusory manner that the decedent could not have been monitored in a way to prevent her fall, that St. Luke’s implemented every appropriate fall risk procedure before the decedent’s fall, and that the decedent’s fall and the resulting subdural hematoma were not substantial factors in causing the decedent’s death … . The expert nurse also did not submit the fall risk assessment or hospital fall prevention policy in accordance with which, she claimed, the decedent was monitored … . Because St. Luke’s did not carry its prima facie burden on its motion, Supreme Court should have denied defendant’s motion with respect to those predicates, regardless of the sufficiency of the moving papers … .
As for the remaining predicates for plaintiffs’ medical malpractice claim, St. Luke’s did not address them in its moving papers, nor did its experts address them in their affidavits. Accordingly, St. Luke’s did not establish its prima facie entitlement to summary judgment dismissing them … . Martir v St. Luke’s-Roosevelt Hosp. Ctr., 2023 NY Slip Op 04478, First Dept 8-31-23
Practice Point: To warrant summary judgment in a medical malpractice action, the expert affidavits cannot be conclusory and must address all of the relevant allegations.
A MUNICIPALITY HAS A DUTY TO INSPECT TREES ADJACENT TO ROADWAYS EVEN IF THE TREES ARE NOT ON THE MUNICIPALITY’S LAND; HERE THE MUNICIPALITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITON OF THE TREE WHICH FELL ON PLAINTIFFS CAR (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the town’s motion for summary judgment in this falling-tree traffic-accident case should not have been granted. Although the tree which fell on plaintiff’s car was on private property, it was adjacent to the road. A municipality has a duty to inspect trees adjacent to roads and the town failed to demonstrate it did not have constructive notice of the dangerous condition of the tree:
“A municipality’s duty to maintain its roadways in a reasonably safe condition encompasses those trees, adjacent to the roads, which could reasonably be expected to pose a danger to travelers. However, liability will not attach unless the municipality had actual or constructive notice of the dangerous condition and subsequently failed to take reasonable measures to correct the condition” … . “Municipalities also possess a common-law duty to inspect trees adjacent to their roadways” … .
“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . “Where there is no evidence that the tree showed any visible, outward signs of decay prior to the accident, it cannot be said that the municipality had constructive notice of a defect. Rather, a manifestation of decay must be readily observable in order to give rise to a duty to prevent harm” … . Jourdain v Metropolitan Transp. Auth., 2023 NY Slip Op 04421, Second Dept 8-30-23
Practice Point: A town has a duty to inspect trees which are adjacent to roads, even if the trees are on private property. Here the town did not demonstrate that it did not have constructive notice of the condition of the tree which fell on plaintiff’s car.
THE COVID STATUTE OF LIMITATIONS TOLL FROM MARCH TO NOVEMBER 2020 DID NOT ONLY APPLY TO ACTIONS WHOSE STATUTES OF LIMITATIONS EXPIRED DURING THAT PERIOD; THEREFORE PLAINTIFF’S ACTION WAS TIMELY (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the COVID toll of the statute of limitations rendered plaintiff’s negligence action timely, noting that the toll did not apply only to statutes of limitations which expired during the toll period:
Pursuant to CPLR 214(5), an action to recover damages for personal injuries is subject to a three-year statute of limitations. In Brash v Richards, this Court held that the executive orders “constitute a toll” of the filing deadlines applicable to litigation in New York courts (Brash v Richards, 195 AD3d 582, 582 … ). … [T]his toll of the statute of limitations did not only apply to statutes of limitations that expired between March 20, 2020, and November 3, 2020 … .
… [D]ue to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to commence this action was tolled between March 20, 2020, and November 3, 2020 … Thus, this action … was commenced against those defendants well within the statute of limitations. Williams v Ideal Food Basket, LLC, 2023 NY Slip Op 04436, Second Dept 8-30-23
Practice Point: The COVID toll of the statute of limitations from March to November 2020 applies to all actions, not only those whose statutes of limitations expired during that period of time.
THE PRE-ANSWER MOTION TO DISMISS SHOULD NOT HAVE BEEN CONVERTED TO A SUMMARY JUDGMENT MOTION; THE AFFIDAVITS SUBMITTED BY DEFENDANTS DID NOT WARRANT GRANTING THE MOTION TO DISMISS; THE AFFIFAVITS WERE NOT “DOCUMENTARY EVIDENCE” AND DID NOT DEMONSTRATE ANY MATERIAL FACT ALLEGED BY PLAINTIFFS WAS NOT “A FACT AT ALL” (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the defendants’ pre-answer motion to dismiss the complaint, and the motion to treat the dismissal motion as a summary judgment motion should not have been granted. The motion should not have been treated as a summary judgment motion because it was premature. The motion should not have been granted as a dismissal based on documentary evidence because the affidavits submitted by the defendants do not constitute “documentary evidence” within the meaning of the CPLR:
The record demonstrates that the defendants’ pre-answer motion was made less than two months after the action was commenced, and that the plaintiff has had no opportunity to conduct discovery. Further, the defendants seek summary dismissal on the basis of facts asserted in their affidavits about which the plaintiff has no personal knowledge. Under these circumstances, the plaintiff is correct that a summary judgment motion would be premature … . Therefore, the defendants’ motion pursuant to CPLR 3211(a) should not have been converted into a motion for summary judgment … . * * *
“While a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” … by showing that a material fact as claimed by the plaintiff “is not a fact at all” and that “no significant dispute exists regarding it” … . * * *
The affidavits submitted by the defendants, which merely contained conclusory denials of the facts asserted by the plaintiff in the complaint, as well as bare factual assertions regarding their use and occupancy of the subject premises, did not demonstrate that “a material fact as claimed by the [plaintiff] to be one is not a fact at all” and that “no significant dispute exists regarding it” … . Russo v Crisona, 2023 NY Slip Op 04438, Second Dept 8-30-23
Practice Point: Although a pre-answer motion to dismiss can be converted to a motion for summary judgment, to do so here was premature. Affidavits generally will not be enough to warrant granting a motion to dismiss. Affidavits are not “documentary evidence.”