Note: Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Above.
Using the search panel or the footer, you can call up the most recent decision-summaries in any legal category simply by clicking on the category in the drop-down menu (revealed by clicking on “All Categories”) or by clicking on the category in the footer. As an aid in reviewing the recent decision-summaries in the more heavily-populated categories, the following pamphlets are offered. A quick review of the issues is facilitated by the Table of Contents in each pamphlet.
“Negligence” Pamphlets—January 2019—March 2020
Some legal categories generate many more decisions in a given month than others. “Negligence” is one of them. To facilitate an overview of the “Negligence” decisions released every month use the “Pamphlet Service.” The January 2019 through January 2020 “Negligence” pamphlets (linked to below) collect all the decision-summaries in the “Negligence” category posted on this site in each of those months. The “Table of Contents” lists all the issues addressed by the “Negligence” summaries and each “Table of Contents” entry links to the decision-summary, which in turn links to the full decision on the New York State Law Reporting Bureau website. To return to the “Table of Contents” from the body of the pamphlet, just click on “Table of Contents” in the header. Any decision-summaries in this category posted after January 2020 will come up simply by clicking on “Negligence” in the search panel or the footer.
Revised Negligence Pamphlet January 2019
Revised Negligence Pamphlet February 2019
Revised Negligence Pamphlet March 2019
Revised Negligence Pamphlet April 2019
Revised Negligence Pamphlet May 2019
Revised Negligence Pamphlet June 2019
Revised Negligence Pamphlet July 2019
Revised Negligence Pamphlet August 2019
Revised Negligence Pamphlet September 2019
Revised Negligence Pamphlet October 2019
Revised Negligence Pamphlet November 2019
Revised Negligence Pamphlet December 2019
Revised Negligence Pamphlet January 2020
Revised Negligence Pamphlet February 2020
Revised Negligence Pamphlet March 2020
Revised Negligence Pamphlet April 2020
“Criminal Law” Pamphlets—January 2019—March 2020
Another heavily populated legal category is “Criminal Law.” All of the “Criminal Law” decision-summaries posted January 2019 through January, 2020, are collected in the pamphlets linked to below. The entries in the “Table of Contents” link to the decision-summaries, which link to the full decisions on the New York State Law Reporting Bureau website. To return to the “Table of Contents” from the body of the “Criminal Law” pamphlet, click on “Table of Contents” in the header. Any decision-summaries in this category posted after January 2020 will come up simply by clicking on “Criminal Law” in the search panel or the footer.
Revised Criminal Law Pamphlet January 2019
Revised Criminal Law Pamphlet February 2019
Revised Criminal Law Pamphlet March 2019
Revised Criminal Law Pamphlet April 2019
Revised Criminal Law Pamphlet May 2019
Revised Criminal Law Pamphlet June 2019
Revised Criminal Law Pamphlet July 2019
Revised Criminal Law Pamphlet August 2019
Revised Criminal Law Pamphlet September 2019
Revised Criminal Law Pamphlet October 2019
Revised Criminal Law Pamphlet November 2019
Revised Criminal Law Pamphlet December 2019
Revised Criminal Law Pamphlet January 2020
Revised Criminal Law Pamphlet February 2020
Revised Criminal Law Pamphlet March 2020
Revised Criminal Law Pamphlet April 2020
“Civil Procedure” Pamphlets—January 2019—March 2020
“Civil Procedure” is a pervasive legal category, in part because most civil cases reach the Appellate Division based upon motion practice (motions to dismiss, motions for summary judgment, etc.). The “Table of Contents” in the “Civil Procedure” pamphlets linked to below facilitates a quick review of the “Civil Procedure” issues addressed by our appellate courts January 2019 through January 2020. Any decision-summaries in this category posted after January 2020 will come up simply by clicking on “Civil Procedure” in the search panel or the footer.
Revised Civil Procedure Pamphlet January 2019
Revised Civil Procedure Pamphlet February 2019
Revised Civil Procedure Pamphlet March 2019
Revised Civil Procedure Pamphlet April 2019
Revised Civil Procedure Pamphlet May 2019
Revised Civil Procedure Pamphlet June 2019
Revised Civil Procedure Pamphlet July 2019
Revised Civil Procedure Pamphlet August 2019
Revised Civil Procedure Pamphlet September 2019
Revised Civil Procedure Pamphlet October 2019
Revised Civil Procedure Pamphlet November 2019
Revised Civil Procedure Pamphlet December 2019
Revised Civil Procedure Pamphlet January 2020
Revised Civil Procedure Pamphlet February 2020
Revised Civil Procedure Pamphlet March 2020
Revised Civil Procedure Pamphlet April 2020
“2019 Court of Appeals Update” Pamphlet—January 2019 – December 2019
The summaries of the decisions and opinions from the New York State Court of Appeals posted between January 1, 2019 and December 31, 2019 have been collected in an organized pamphlet. The “Table of Contents” facilitates a quick review of the issues dealt with by the Court of Appeals so far this year. The entries in the “Table of Contents” link to the decision-summaries. Click on “Table of Contents” in the header to return there. To keep up with the latest Court of Appeals decisions released after December 31 (as they are posted), simply type “CtApp” into the “Search by Keywords” line of the search panel and click on “Search.” The most recent Court of Appeals decision summaries will come up first.
Revised 2019 Court of Appeals Pamphlet
“2019 Labor Law-Construction Law Update” Pamphlet—January 1, 2019 – December 31, 2019
The “Labor Law-Construction Law” decision-summaries posted between January 1, 2019 and December 31, 2019, have been collected in a pamphlet. The “Table of Contents” in the “Labor Law-Construction Law” pamphlet linked to below facilitates a quick review of the issues raised in 2019. Any decision-summaries in this category posted since December 31, 2019 will come up simply by clicking on “Labor Law-Construction Law” in the search panel or the footer.
Revised 2019 Labor Law-Construction Law Update Pamphlet
“2019 Foreclosure Update” Pamphlet—January 1, 2019 – December 31, 2019
The “Foreclosure” decision-summaries posted between January 1, 2019 and December 31, 2019, have been collected in a pamphlet. The “Table of Contents” in the “Foreclosure” pamphlet linked to below facilitates a quick review of the issues raised in 2019. Any decision-summaries in this category posted since December 31, 2019 will come up simply by clicking on “Foreclosure” in the search panel or the footer.
Revised 2019 Foreclosure Update Pamphlet
THE ‘COVID-19’ EXECUTIVE ORDER GENERALLY TOLLING THE STATUTE OF LIMITATIONS DID NOT EXTEND THE TIME FOR FILING A PETITION TO VALIDATE A DESIGNATING PETITION, WHICH IS GOVERNED BY ANOTHER ‘COVID-19’ EXECUTIVE ORDER (SECOND DEPT).
The Second Department determined the petition to validate the appellant’s designating petition was not timely commenced pursuant to Executive Order No. 202.8 passed in response to the COVID-19 pandemic:
… [T]he statute of limitations for commencing this Election Law article 16 proceeding was not tolled by a provision of Executive Order (Cuomo) No. 202.8 (9 NYCRR 8.202.8), issued on March 20, 2020, in response to the COVID-19 pandemic, which generally tolled limitations periods. Rather, this matter is governed by chapter 24 of the Laws of 2020, passed by the Legislature and signed into law by the Governor two days before the issuance of Executive Order No. 202.8, also in response to the COVID-19 pandemic … . That legislation set a new date for the filing of designating petitions and specifically provided that the time to commence an Election Law article 16 proceeding “shall be adjusted accordingly” … . Indeed, tolling the statute of limitations when the primary election will take place on June 23, 2020, is unworkable … for commencing Election Law article 16 proceedings, pertaining to the validity of designating petitions. We note that while the courts ceased accepting papers for filing in many legal matters due to the pandemic, they continued to accept filings of emergency Election Law applications, as such matters were deemed “essential” by the Chief Administrative Judge … . Matter of Echevarria v Board of Elections in the City of N.Y., 2020 NY Slip Op 02992, Second Dept 5-21-20
DESIGNATING PETITION PERMEATED BY FRAUD INVALIDATED; THREE JUDGE DISSENT (CT APP).
The Court of Appeals, in an opinion per curiam, reversing the Appellate Division, over a three-judge dissent, determined the designating petition was permeated by fraud and must be invalidated:
… [W]here appropriate, a court may … conclude that, “because of its magnitude[,]” fraud and irregularity established by clear and convincing evidence “so permeated’ the [designating] petition as a whole to call for its invalidation” … .
Based on the undisputed facts of this matter, which establish, among other things, “that 512 out of 944 signatures submitted in the [designating] petition are backdated to dates preceding the candidate’s receipt of the blank petition pages,” and that “14 of the 28 subscribing witnesses” swore that those signatures were placed on the designating petition before the blank petition pages were obtained from the printer (… cf. Election Law § 6-134 [3]), the lower courts should have concluded that this is one of those rare instances in which the designating petition is so “permeated” by fraud “as a whole as to call for its invalidation” … . Matter of Ferreyra v Arroyo, 2020 NY Slip Op 02994, CtApp 5-21-20
DESPITE THE HARDSHIP IMPOSED BY THE COVID-19 PANDEMIC, THE FAILURE TO TIMELY FILE A COVER SHEET ACCOMPANYING A DESIGNATING PETITION IS A FATAL DEFECT (CT APP).
The Court of Appeals, in an opinion per curiam, reversing the First Department and affirmed the Third Department, over two comprehensive dissenting opinions, determined that, despite the hardship imposed by Covid-19, the failure to timely file a cover sheet accompanying a designating petition is a fatal defect:
In Matter of Seawright v Board of Elections in the City of New York, the Appellate Division, First Department, held that — in light of the “unique circumstances” created by the COVID-19 pandemic — the candidate’s belated filing of a cover sheet and certificate of acceptance did not constitute a fatal defect (2020 NY Slip Op 02900, *1 [1st Dept May 14, 2020]). In Matter of Hawatmeh v New York State Board of Elections, the Appellate Division, Third Department, rejected the First Department’s approach and reached the opposite conclusion, holding that — notwithstanding the “unprecedented circumstances created by the COVID-19 pandemic” — the candidate’s belated filing of a certificate of acceptance was a fatal defect (2020 NY Slip Op 02907, *1-2 [3d Dept May 15, 2020]). …
We granted leave to resolve this departmental split. We now reverse in Seawright and affirm in Hawatmeh. * * *
The COVID-19 pandemic has undoubtedly presented uniquely challenging circumstances for Seawright and Hawatmeh — among countless other candidates for public office. Nonetheless, as in our prior cases, we remain constrained by the express directive of the Election Law: the complete failure to file, by the applicable deadline, either a cover sheet with a designating petition or a certificate of acceptance constitutes a “fatal defect” (Election Law § 1-106 [2]). The First Department’s analysis, employed in Seawright, Mejia (___ NY3d ___ [decided herewith]), and Mujumder (___ NY3d ___ [decided herewith]), directly conflicts with that well-established statutory mandate … . Matter of Seawright v Board of Elections in the City of New York, 2020 NY Slip Op 02993, CtApp 5-21-20
FAILURE TO FILE A COVER SHEET ACCOMPANYING A DESIGNATING PETITION IS A FATAL DEFECT (CT APP).
The Court of Appeals reversing these two election matters, determined the failure to timely file a cover sheet accompanying a designating petition is a fatal defect:
For the reasons stated in Matter of Seawright v Board of Elections in the City of New York (____ NY3d ____ [decided herewith]), the failure to timely file a cover sheet accompanying a designating petition constitutes a fatal defect.
For each case: Order reversed, without costs, and petition to validate the designating petitions denied, in a memorandum. Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur. Judge Wilson dissents for reasons stated in his dissenting opinion in Matter of Seawright v Board of Elections in the City of New York and Matter of Hawatmeh v New York State Board of Elections (decided today). Matter of Mejia v Board of Elections in the City of New York, 2020 NY Slip Op 02995, CtApp 5-21-20
COUNTY COURT’S POST-JUDGMENT DENIAL OF DEFENDANT’S SUPPRESSION MOTION, AFTER A HEARING HELD PURSUANT TO THE SECOND CIRCUIT’S ORDER RE: DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS, WAS AN INTERMEDIATE ORDER WHICH IS NOT APPEALABLE; MATTER REMITTED TO ALLOW COUNTY COURT TO AMEND THE JUDGMENT OF CONVICTION TO REFLECT THE RECENT DENIAL OF THE SUPPRESSION MOTION; THE AMENDED JUDGMENT OF CONVICTION WOULD THEN BE APPEALABLE (THIRD DEPT).
The Third Department determined the post-judgment order denying defendant’s motion to suppress his statements was an intermediate order which was not appealable. The Second Circuit, pursuant to defendant’s petition for a writ of habeas corpus, ordered defendant’s release unless a state court adjudicated the voluntariness of his confession (made in 1986 when defendant was 16). County Court held a new suppression hearing and issued the order denying suppression. The Third Department sent the matter back to allow the amendment of the judgment of conviction to reflect the recent denial of the suppression motion, which would then be appealable:
Although not raised by the parties, we must first address the threshold issue of the appealability of County Court’s order. Indeed, an order denying a defendant’s suppression motion is an unreviewable intermediate order (see CPL 450.10). Ordinarily, in the course of a criminal proceeding, suppression hearings occur prior to a judgment of conviction and are reviewed incident to the direct appeal from that judgment. Nevertheless, there are cases, including the instant appeal, where a suppression hearing occurred after entry of a judgment of conviction … . In each of these cases, the trial court was specifically instructed that, if the defendant did not prevail in the suppression hearing, the judgment of conviction should be amended to reflect that fact … . Here, however, the Second Circuit did not advise County Court to take this step … , and there is no evidence in the record that an amended judgement of conviction was entered after the People prevailed at the suppression hearing.
Accordingly, because an amended judgment of conviction has not been entered, we must dismiss this appeal. This harsh outcome appears at odds with the federal habeas corpus remand, which, in our view, was intended to permit review of the suppression hearing until finally decided by the court of last resort. However, this dismissal provides County Court the opportunity to amend the judgment of conviction to reflect the denial of the suppression motion, and defendant could then appeal as of right from the amended judgment of conviction (see CPL 450.10 [1]). People v Dearstyne, 2020 NY Slip Op 02951, Third Dept 5-21-20
DEFENSE COUNSEL’S REMARKS ABOUT DEFENDANT’S PRO SE MOTION TO WITHDRAW HER GUILTY PLEA CREATED A CONFLICT OF INTEREST REQUIRING THE ASSIGNMENT OF NEW COUNSEL; TWO-JUSTICE DISSENT (THIRD DEPT).
The Third Department, reversing Supreme Court, over a two-justice dissent, determined the sentencing court should have assigned new counsel to defendant based upon defense counsel’s remarks about defendant’s pro se motion to withdraw her guilty plea, which created a conflict of interest. The dissenters argued that, before defense made the remarks evincing a conflict of interest, the sentencing judge had denied defendant’s pro se motion to withdraw her plea without prejudice to retain counsel and make a new motion:
After Supreme Court agreed to adjourn sentencing, without having decided defendant’s pro se motion, defense counsel requested that he be permitted to put “a couple [of] things on the record.” Upon receiving the court’s permission, defense counsel proceeded to make several detrimental statements that were adverse and prejudicial to defendant. At this point, a conflict of interest arose between defendant and defense counsel, and Supreme Court was obligated to relieve defense counsel of his representation of defendant … . Supreme Court, however, did not acknowledge that a conflict of interest had arisen or inform defendant that she was entitled to the assignment of new counsel, should she opt to avail herself of that option.
When defendant subsequently appeared in Supreme Court for sentencing, she was accompanied by her original assigned counsel.Once again, Supreme Court did not raise or address the conflict of interest that had previously arisen between defendant and defense counsel, assign new counsel or advise defendant that she was entitled to the assignment of new counsel. Defense counsel requested that defendant be granted an additional adjournment, … stating that defendant had retained a certain named attorney, but that “[t]he funds just [had not] reached him yet.” Without having afforded defendant an opportunity to confer with new counsel regarding her motion to withdraw her plea or having ruled on that motion, Supreme Court denied the adjournment request and proceeded to sentencing. By failing to relieve defense counsel of his representation of defendant once the conflict of interest arose and to either assign new counsel or permit defendant a sufficient opportunity to retain alternate counsel to represent her, Supreme Court deprived defendant of her right to the effective assistance of counsel in connection with her motion to withdraw her plea … . People v Maldonado, 2020 NY Slip Op 02953, Third Dept 5-21-20
DEFENDANTS’ CLOSE RELATIONSHIP WITH SIGNATORIES TO CONTRACTS WITH FORUM SELECTION CLAUSES JUSTIFIED THE EXERCISE OF JURISDICTION OVER DEFENDANTS FOR PURPOSES OF JURISDICTIONAL DISCOVERY (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined that defendants’ close relationship with signatories to contracts with forum selection clauses justified the exercise of jurisdiction, for purposes of jurisdictional discovery:
A non-signatory may … be bound by a forum selection clause where the non-signatory and a party to the agreement have such a “close relationship” that it is foreseeable that the forum selection clause will be enforced against the non-signatory … . The rationale for binding non-signatories is based on the notion that forum selection clauses “promote stable and dependable trade relations,” and thus, that it would be contrary to public policy to allow non-signatory entities through which a party acts to evade the forum selection clause … . * * *
… [T]he motion court did not undertake a separate minimum-contacts analysis. However, the concept of foreseeability is built into the closely-related doctrine, which explicitly requires that the relationship between the parties be such that it is foreseeable that the non-signatory will be bound by the forum selection clause. …
Thus, courts have recognized that a consent to jurisdiction by virtue of the “close relationship” between the non-signatory and contracting party obviating the need for a separate analysis of constitutional propriety … . Highland Crusader Offshore Partners, L.P. v Targeted Delivery Tech. Holdings, Ltd., 2020 NY Slip Op 02991, First Dept 5-21-20
THE DOCTRINE OF ‘TAX ESTOPPEL’ PROHIBITED DEFENDANT FROM TAKING A POSITION ON OWNERSHIP OF A CORPORATION WHICH IS CONTRARY TO STATEMENTS MADE IN CORPORATE TAX RETURNS (FIRST DEPT).
The First Department, reversing Supreme Court and clarifying a prior ruling. determined the doctrine of “tax estoppel” applied to preclude defendant Elayan from taking a position contrary to the factual statements in corporate tax returns re: an ownership interest in the corporation, Edgewater:
The court improvidently exercised its discretion in failing to apply the doctrine of “tax estoppel.” Under that doctrine, defendants’ acts in filing corporate tax returns for the years 2010 through 2014, signed by defendant Elayan, which contained factual statements that plaintiff Jaber had a 75% ownership interest in Edgewater during that time period, and precludes defendants from taking a position contrary to that in this litigation … . To the extent our decision in Matter of Bhanji v Baluch (99 AD3d 587 [1st Dept 2012]) has been interpreted as making the doctrine generally inapplicable with respect to factual statements of ownership in tax returns, we clarify that the doctrine applies where, as here, the party seeking to contradict the factual statements as to ownership in the tax returns signed the tax returns, and has failed to assert any basis for not crediting the statements … . PH-105 Realty Corp v Elayaan, 2020 NY Slip Op 02971, First Dept 5-21-20
DEFENDANT FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE BROKEN CURB WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant did not demonstrate it did not have constructive notice of the broken curb which allegedly caused plaintiff’s slip and fall:
… [T]he defendants failed to meet this burden. In support of their motion, among other things, they proffered the affidavit of the director of engineering of Mount Vernon Hospital who averred that there were no maintenance or complaint records for approximately three years preceding the accident, that he would inspect the premises approximately once a month, and that “the sidewalk and curbing is repaired and replaced on an as needed basis.” The defendants did not proffer any evidence demonstrating when the area at issue was last inspected prior to the plaintiff’s alleged accident … . Moreover, the defendants failed to make a prima facie showing that the alleged defect that caused the plaintiff to fall was not visible and apparent, and would not have been noticed upon a reasonable inspection of the area where the plaintiff alleged she tripped and fell … . Malloy v Montefiore Med. Ctr., 2020 NY Slip Op 02921, Second Dept 5-20-20
UNDER CALIFORNIA LAW A CONTRACT WITH MUTUAL CANCELLATION CLAUSES IS VALID; THEREFORE THE CANCELLATION BY DEFENDANT WAS NOT A BREACH OF THE CONTRACT OR THE COVENANT OF GOOD FAITH (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the contract, which required the application of California law, and which included mutual cancellation clauses, was valid. Therefore cancellation by the defendant was not a breach of the contract or the covenant of good faith:
Contrary to the plaintiff’s contention, the terms of the agreement in this case expressly permitted cancellation by either party during the initial one-year term, and the complaint therefore fails to state a viable cause of action for breach of contract. Pursuant to California law, contracts with mutual cancellation provisions are not illusory … , and contracts that provide for a fixed duration but that also contain an express clause for termination at will are not inconsistent … . …
… [T]he cause of action alleging anticipatory breach seeks damages for losses allegedly arising from the defendant’s failure to renew the term of the agreement. However, since the defendant properly cancelled the agreement during the initial term, there can be no recovery for anticipatory breach of contract based on any subsequent nonrenewal … . …
“It is universally recognized the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract” … , and the Supreme Court of California has noted that it is “aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement” … . A.D.E. Sys., Inc. v Energy Labs, Inc., 2020 NY Slip Op 02911, Second Dept 5-20-20
JUDGE SHOULD NOT HAVE SEARCHED THE RECORD AND, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN THE MOTION PAPERS, INCLUDING THE APPLICATION OF THE RES IPSA LOQUITUR DOCTRINE (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the judge should not have, sua sponte, searched the record to grant relief that was not requested in this Labor Law 200, 240(1), 241(6), negligence action. Plaintiff was injured when a portion of a ceiling fell causing a scaffold to collapse on him. The judge should not have granted summary judgment on a negligence cause of action which was not included in the motions, and should not have granted summary judgment on a res ipsa loquitur theory:
While it is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court (see CPLR 3212[b] …), here, the court, in effect, searched the record and awarded summary judgment to the movant with respect to an issue that was not the subject of the motion before the court. …
The doctrine of res ipsa loquitur applies when the injury-causing event (1) is “of a kind which ordinarily does not occur in the absence of someone’s negligence”; (2) “[is] caused by an agency or instrumentality within the exclusive control of the defendant”; and (3) was not “due to any voluntary action or contribution on the part of the plaintiff” … . Contrary to the Supreme Court’s determination, this is not one of “the rarest of res ipsa loquitur cases” where the plaintiff’s circumstantial evidence is so convincing and the defendant’s response so weak that the inference of the defendant’s negligence is inescapable … . Although the first and third elements may be satisfied in the plaintiff’s favor, based upon the limited record, this standard was not met as to the second element. Even though courts do not generally apply the requirement of exclusive control as it is literally stated or as a fixed, mechanical or rigid rule … , the plaintiff failed to demonstrate that the plaster ceiling is “structural” and, therefore, the obligation of [defendant] Lexington to maintain pursuant to the terms of the lease it entered into with [defendant] Dover. Moreover, the papers do not establish the plaintiff’s entitlement to summary judgment against Dover on this issue, which was raised by the court sua sponte as against Dover, and was not the subject of the plaintiff’s motion as against Dover. Zhigue v Lexington Landmark Props., LLC, 2020 NY Slip Op 02948, Second Dept 5-20-20
ALTHOUGH THE SEARCH WARRANT WAS IMPROPERLY ADDRESSED TO THE SPECIAL OPERATIONS GROUP, WHICH INCLUDED PEACE OFFICERS AS OPPOSED TO POLICE OFFICERS, THE WARRANT WAS PROPERLY ADDRESSED TO POLICE OFFICERS AS WELL; THE PARTICIPATION OF PEACE OFFICERS IN THE SEARCH WAS LIMITED AND DID NOT INVALIDATE THE SEARCH (SECOND DEPT).
The Second Department determined the fact that corrections officers (i.e., peace officers) participated in a search, along with police officers, did not invalidate the search:
There is no dispute that the search warrant was properly addressed to police officers of the City of Middletown Police Department and police officers of the New York State Police (see CPL 1.20[34][a], [d]). Accordingly, the search warrant complied with the statutory requirement that it “be addressed to a police officer whose geographical area of employment embraces or is embraced or partially embraced by the county of issuance” (CPL 690.25[1]).
The defendant is correct that the search warrant was improperly addressed to the Special Operations Group, since it includes members who are not police officers within the meaning of the statute (see CPL 690.25[1]; see also CPL 2.10[25]). However, “[s]earch warrants should be tested in a commonsense and realistic manner with minor omissions and inaccuracies not affecting an otherwise valid warrant” … . * * *
Here, the record of the suppression hearing demonstrates that the Special Operations Group played a limited role in the execution of the warrant. Members of that group merely secured entry to the residence for the benefit of the police officers who actually conducted the search and recovered the physical evidence at issue. People v Ward, 2020 NY Slip Op 02943, Second Dept 5-20-20
FATHER’S CHILD SUPPORT OBLIGATION DID NOT CEASE UPON MOTHER’S DEATH; MATERNAL GRANDFATHER’S PETITION SEEKING TO BE MADE THE CHILD-SUPPORT PAYEE RETROACTIVE TO MOTHER’S DEATH PROPERLY GRANTED (SECOND DEPT).
The Second Department determined father’s child support obligations did not cease upon the death of mother. The maternal grandparents were awarded sole custody of the child. The maternal grandfather’s petition seeking to be made the payee of father’s child support was properly granted, retroactive to the date of mother’s death:
Since a child support obligation is owed to the child, not to the payee spouse, “the death of the payee spouse does not terminate the obligation” … . Here, the death of the mother did not terminate the father’s continuing obligation under the order of support dated December 4, 2014, to support the children. It would be contrary to the statutory scheme of the Family Court Act and the important public policies it embodies for the father to no longer be liable for unpaid child support payments accrued after the mother’s death where, as here, “he neither had custody of the child[ren] nor sought to otherwise modify his child support obligation during the relevant period” … . Matter of Sultan v Khan, 2020 NY Slip Op 02929, Second Dept 5-20-20
FAMILY COURT SHOULD NOT HAVE SUMMARILY DISMISSED MOTHER’S PETITION FOR CUSTODY OF CHILDREN LIVING OUT-OF-STATE WITHOUT FIRST DETERMINING WHETHER IT HAD EXCLUSIVE, CONTINUING JURISDICTION OVER CUSTODY ISSUES (SECOND DEPT).
The Second Department determined Family Court should not have dismissed mother’s petition seeking sole custody of the children, who lived out-of-state, without first making a ruling on whether it had continuing jurisdiction over custody issues:
On November 22, 2016, the Family Court issued an order (hereinafter the custody order) awarding, inter alia, joint legal custody of the subject children to the mother and the children’s godmother, with primary physical custody and final decision-making authority to the godmother. …
Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in article 5-A of the Domestic Relations Law, a court in this State which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish jurisdiction because the child does not have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a[1][a] …). …
… Family Court should not have summarily dismissed the mother’s petition on the ground that the children had been living with the godmother in Pennsylvania, without considering whether it had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a (1) … , and affording the mother an opportunity to present evidence as to that issue … . Matter of Hodge v Hodges-Nelson, 2020 NY Slip Op 02926, Second Dept 5-20-20
SALE OF LAND ORIGINALLY SET ASIDE FOR A CEMETERY WITHOUT RESTRICTIONS CONSTITUTED AN ABANDONMENT OF THE CEMETERY-RELATED USE-RESTRICTIONS ON THE LAND (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Connolly, determined the (1907) restrictions on land originally set aside for use as a cemetery had been abandoned (by the sale of the land in 1908) and the single-family residential zoning restrictions subsequently imposed on the land were enforceable, despite the repurchase of the land (in 1950) by the operator of the cemetery:
“A holder of a deed of a cemetery lot . . . acquires only a privilege or license, exclusive of others, to make interments in the lot purchased, only so long as the lot remains a cemetery” … . However, such privilege or license may be extinguished upon abandonment of the cemetery use … . * * *
… “[W]here a cemetery has been so neglected as entirely to lose its identity as such, and is no longer known, recognized, and respected by the public as a cemetery, it may be said to be abandoned” … . Moreover, an affirmative act that “undoes the character and association” of the cemetery “and leaves the land subject to sale or to legal partition . . . loses its sacredness as a resting place for the dead” … . …
Here, the 1908 sale of the 33-acre parcel … to … a private individual, which included the 12.5-acre parcel at issue, constituted an affirmative act of abandonment of the cemetery use of that property. The petitioner failed to submit any evidence to establish a continuous and uninterrupted relationship between itself and the persons or entities that owned the property from 1908 to 1971, when it reacquired the property … . Matter of Ferncliff Cemetery Assn. v Town of Greenburgh, 2020 NY Slip Op 02925, Second Dept 5-20-20
OBJECTIONS TO A DESIGNATING PETITION WERE NOT SERVED BY CERTIFIED OR REGISTERED MAIL AS REQUIRED BY THE ELECTION LAW AND WERE NOT TIMELY SERVED UNDER THE TERMS OF THE ELECTION LAW (THIRD DEPT).
The Third Department determined service of objections to the Weinstock designating petition by express mail overnight was not the equivalent of service by registered or certified mail as required by the Election Law. The court also determined that the proceeding was not timely commenced:
Although petitioners argue that express mail overnight is the “functional equivalent” of registered or certified mail, the provisions of 9 NYCRR 6204.1 (b), which are “mandatory and may not be disregarded”… , as well as the service requirements set forth in Election Law § 6-154 (2), have long required strict and literal compliance … . …
“A petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)” … . In order to properly complete service, actual delivery must occur no later than the last day upon which the proceeding may be commenced …— here, April 3, 2020.
As evidenced by the proofs of delivery contained in the record on appeal, the order to show cause and the accompanying petition were delivered to Weinstock on April 4, 2020 and to the State Board on April 6, 2020. Inasmuch as service was not completed within the statutory period ending on April 3, 2020, Supreme Court properly found that this proceeding was not timely commenced … . Matter of Sauberman v Weinstock, 2020 NY Slip Op 02906, Third Dept 5-15-20
FAILURE TO TIMELY FILE A CERTIFICATE OF ACCEPTANCE OF A DESIGNATION REQUIRED INVALIDATION OF THE DESIGNATING PETITION, NOTWITHSTANDING A REASONABLE EXPLANATION OF THE ONE-DAY-LATE MAILING DUE TO COVID-19 (THIRD DEPT).
The Third Department determined the COVID-19 crisis did not excuse the late filing of a certificate of acceptance of a designation. The designating petition was properly invalidated:
… [P]etitioner was required to file her certificate of acceptance of designation no later than March 24, 2020 (see Election Law § 6-158 [2]). Although petitioner completed the acceptance form on March 24, 2020, the record confirms, and petitioner does not dispute, that it was mailed on March 25, 2020. As the acceptance was not “postmarked prior to midnight of the last day of filing,” her acceptance was untimely (Election Law § 1-106 [1]). Contrary to petitioner’s contention and the dissent’s characterization, the failure to abide by the prescribed timelines set forth in the Election Law for the filing of a certificate of acceptance is not a technical violation, but, by the plain statutory language, “a fatal defect” (Election Law § 1-106 [2] …). …
Citing to the unprecedented circumstances created by the COVID-19 pandemic, petitioner also seeks equitable relief to have her acceptance deemed timely filed. We are sympathetic to the difficult situation that petitioner was placed in due to the pandemic and the shortened political calendar but, even assuming that she has articulated a reasonable explanation for her untimely filing of the certificate of acceptance, the equitable remedy that she seeks is unavailable. Matter of Hawatmeh v New York State Bd. of Elections, 2020 NY Slip Op 02907, Third Dept 5-15-20
TAKING A LEAVE OF ABSENCE FROM A POSITION ON THE COUNTY BOARD OF ELECTIONS TO RUN FOR STATE SENATE IS NOT THE EQUIVALENT OF RESIGNING FROM THE BOARD OF ELECTIONS, WHICH IS REQUIRED BY THE ELECTION LAW; THE DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the designating petition of LaLota should have been invalidated under the provisions of the Election Law. LoLota was a Commissioner of the Suffolk County Board of Elections. He took a “leave of absence” from that position to allow him to seek office as a State Senator. The Second Department held that taking a leave of absence was not the equivalent of resigning, which is required by the Election Law:
The purpose of the statute is readily apparent—to prevent the conflict of interest, and potential abuse of authority, that would arise if a person is simultaneously both a candidate for public office and an election commissioner charged with the responsibility for overseeing the casting and canvassing of votes for that office. The concern that the statute addresses would not be assuaged by an election commissioner simply stepping aside momentarily while reserving the right to act as commissioner at any time of his or her own choosing. Additionally, because the Deputy Commissioner is appointed by, and serves at the pleasure of, the Commissioner … , LaLota’s designation of his deputy to act for him during his leave of absence does not serve to ameliorate the conflict of interest concerns against which the statute seeks to guard. Matter of LaLota v New York State Bd. of Elections, 2020 NY Slip Op 02905, Second Dept 5-15-20
QUESTION OF FACT WHETHER PLAINTIFF WAS TOLD TO PAINT ONLY WHERE HE COULD REACH WITHOUT THE LADDER IN THIS LADDER-FALL CASE (FIRST DEPT).
The First Department, reversing Supreme Court, determined there was evidence plaintiff was told only to paint areas he could reach without the ladder. Plaintiff fell from the ladder:
Plaintiff was injured when he fell from a ladder while painting an apartment in a building owned by defendant. The testimony of plaintiff’s employer, that he had specifically instructed plaintiff only to paint areas he could reach and not to use the ladder, raises triable issues as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law § 240(1) … . Orellana v Mo-Hak Assoc., LLC, 2020 NY Slip Op 02867, First Dept 5-14-20
ARBITRATOR’S AWARD OF $63,000 UNDER THE LEMON LAW BASED UPON NOISES FROM THE VEHICLE WAS NOT SUPPORTED BY ADEQUATE EVIDENCE (FIRST DEPT).
The First Department, reversing Supreme Court, determined the arbitration award in this Lemon Law case was not supported by adequate evidence. Respondent Leonidou leased a BMW and brought an action under the Lemon Law (General Obligations Law 198-a) alleging noises impaired the value of the vehicle. The arbitrator awarded Leonidou nearly $63,000:
The Lemon Law applies to defects in car parts and workmanship that are expressly warrantied from defect by the manufacturer/dealer (see General Business Law § 198-a[b][1]). Under the statute, when a manufacturer is unable to correct a defect or condition that “substantially impairs” the value of the motor vehicle after a reasonable number of attempts, the manufacturer, at the option of the consumer, is required either to (1) replace the motor vehicle with a comparable motor vehicle or (2) accept return of the vehicle and refund the full purchase price to the consumer (General Business Law § 198-a[c][1]). It is undisputed that Leonidou was offered a replacement vehicle by BMW and the dealership in accordance with General Business Law § 198-a (c)(1). Leonidou exercised his option not to replace his vehicle.
Leonidou failed to present any evidence to show a defect in materials or workmanship that was covered by an express warranty … . Leonidou acknowledged that the noise issues did not affect the car’s safety or operation. He admitted that other drivers he knew, driving the same vehicle type, experienced similar noises, and BMW’s witnesses, who testified to their technical experience in repairing such vehicles, attested that the noises at issue were inherent in the SUV design due to its, inter alia, stiffer suspension for off-road conditions. There was no basis in this record to find that the noises otherwise substantially impaired the value of the vehicle to Leonidou … . Matter of BMW of N. Am., LLC v Leonidou, 2020 NY Slip Op 02858, First Dept 5-14-20
PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT IN THIS TRUCK-BICYCLE COLLISION CASE; THE TRUCK DRIVER BREACHED HIS DUTY TO SEE WHAT SHOULD BE SEEN (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff bicyclist was entitled to summary judgment in this traffic accident case based upon the video taken from inside defendants’ truck (which collided with plaintiff):
The video footage taken from inside defendants’ truck shows plaintiff bicycling on the right side of the lane in front of Ortiz [the truck driver] before being struck … . Ortiz thus failed to exercise due care to avoid colliding with a bicyclist (Vehicle and Traffic Law § 1146[a]), and breached his duty “to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Moreover, plaintiff was not required to demonstrate his own freedom from comparative negligence nor to show that defendants’ negligence was the sole proximate cause of the accident to be entitled to summary judgment … . Fernandez v Ortiz, 2020 NY Slip Op 02856, Second Dept 5-14-20
LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE ACCIDENT WAS RELATED TO MATERIAL ON THE FLOOR WHICH CAUSED THE WHEELS OF A CART PLAINTIFF WAS PUSHING TO GET STUCK; DEFENDANT DID NOT DEMONSTRATE WHEN THE FLOOR WAS LAST INSPECTED OR CLEANED (FIRST DEPT).
The First Department, reversing Supreme Court, determined the Labor Law 200 and common law negligence causes of action should not have been dismissed. Plaintiff was pushing a cart when the wheels got stuck. When a coworker kept pulling the cart plaintiff hand was pinned and the tip of his index finger was severed. Plaintiff alleged there were steel rods (which were integral to the work) and garbage on the floor:
A defendant will be found to have “failed to establish that they lacked constructive notice of the dangerous condition that caused plaintiff’s injury, [if] they submitted no evidence of the cleaning schedule for the work site or when the site had last been inspected before the accident” … .
Here, plaintiff alleges that there was “garbage” as well as rods on the floor that impeded the cart’s movement. Bravo’s [the builder’s] contract explicitly required it to look for dangerous and hazardous conditions on a daily basis, and to keep the workplace safe. However, since Bravo submitted no evidence as to its inspection and cleaning schedule of the worksite, this claim must be reinstated.
It is not relevant whether the rods on which the cart got stuck were an open and obvious condition that plaintiff could have seen, since that issue raises a question of plaintiff’s comparative negligence and does not bear on defendant’s own liability … . Spencer v Term Fulton Realty Corp., 2020 NY Slip Op 02855, First Dept 5-14-20
DEFENDANT SUFFICIENTLY DEMONSTRATED A PLEA WHICH WOULD NOT RESULT IN MANDATORY DEPORTATION COULD HAVE BEEN WORKED OUT; THE MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).
The First Department, reversing Supreme Court, determined defendant’s motion to set aside his conviction based upon ineffective assistance of counsel should not have been denied without a hearing. The defendant presented sufficient evidence that defense counsel could have negotiated a plea which would not result in mandatory deportation:
Where the basis of a claim for ineffective counsel is counsel’s failure to attempt to negotiate an immigration friendly plea, defendant has to show that there is a reasonable probability that the People would have made such an offer … . If the likelihood that the People would have made such an offer is speculative, then the motion may be denied without a hearing … . Here, however, defendant’s motion shows that there was a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences. …
Defendant has adequately alleged that there was a reasonable possibility that the People would have offered defendant such a plea, despite the fact that the drug possession charge is a lesser-included offense to the drug sale charge. First, the People agreed to a sentence of one year in prison and one year of post-release supervision in order to cover defendant’s drug offenses. This suggests that there was a reasonable possibility that the People would have agreed to a different, immigration-favorable disposition resulting in the same aggregate prison time … . …
Second, both offenses subject defendant to equally enhanced sentences if he were to be convicted of another felony within 10 years … . …
Third, if the People had only been willing to offer the lesser-included offense together with a longer sentence, defendant might well have been willing to agree to that. …
Finally, there is no evidence that the People specifically sought a conviction on the drug sales offense in order to secure a harsher immigration consequence for defendant … . …
‘… [D]efendant demonstrated a reasonable possibility that he would have rejected his plea had he known that he could have obtained a sentence that had less harsh immigration consequences … . People v George, 2020 NY Slip Op 02852, First Dept 5-14-20
THE BANKRUPTCY EXCEPTION TO THE INSURED VS INSURED EXCLUSION IN THE DIRECTORS AND OFFICERS LIABILITY POLICY APPLIED TO THE CREDITOR TRUST WHICH WAS SET UP TO PURSUE THE BANKRUPTCY ESTATE’S LEGAL CLAIMS ON BEHALF OF UNSECURED CREDITORS; THE CREDIT TRUST SUED THE DIRECTORS AND OFFICERS OF THE INSURED ALLEGING BREACH OF FIDUCIARY DUTY (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Renwick, in a matter of first impression, determined that the bankruptcy exception to the insured vs. insured exclusion of a Directors and Officers (D & O) liability insurance policy applied to a Creditor Trust. The Creditor Trust was formed pursuant to a Chapter 11 bankruptcy reorganization plan for the insured, RCS Capital Corporation (RCAP), to pursue the bankruptcy estate’s legal claims on behalf of unsecured creditors of the insured:
… [T]he Creditor Trust sued RCAP’s directors and officers alleging they had breached their fiduciary duties to the company. The directors and officers sought coverage under RCAP’s D & O liability policy with Westchester (the insurer). Westchester commenced this action in response, seeking a declaratory judgment that it has no coverage obligations.
This appeal raises an issue of apparent first impression of whether a D & O liability policy’s bankruptcy exception, which allows claims asserted by the “bankruptcy trustee” or “comparable authority,” applies to claims raised by a Creditor Trust, as a post-confirmation litigation trust, to restore D & O coverage removed by the insured vs. insured exclusion. For the reasons that follow, we find that the bankruptcy exception, to the insured vs. insured exclusion, applies to restore coverage. Specifically, we interpret the broad language “comparable authority” to encompass a Creditor Trust that functions as a post-confirmation litigation trust, given that such a Creditor Trust is an authority comparable to a “bankruptcy trustee” or other bankruptcy-related or “comparable authority” listed in the bankruptcy exception. Westchester Fire Ins. Co. v Schorsch, 2020 NY Slip Op 02895, First Dept 5-14-20
ALTHOUGH RESPONDENT VOTED IN CONNECTICUT WHILE IN COLLEGE THERE, NEW YORK REMAINED HIS ELECTORAL RESIDENCY; THEREFORE RESPONDENT WAS ELIGIBLE TO RUN FOR STATE SENATE IN NEW YORK (FIRST DEPT).
The First Department, reversing Supreme Court, over a dissent, determined New York, not Connecticut, was respondent’s (Koffman’s) electoral residency. Therefore respondent was eligible to run for the State Senate in New York. Respondent had attended college in Connecticut and registered to vote a there during college:
Petitioner submitted proof that respondent had registered to vote and had voted in Connecticut from 2015 to 2018 instead of voting by absentee ballot in New York. In opposition to the summary judgment motion, respondent presented his affidavit and documentary evidence which demonstrated, among other things, that he was born and raised in New York; that he used his New York home as his permanent address; maintained his New York driver’s license; paid New York taxes; completed New York jury service while he was a student at Yale; lived in New York when school was not in session; returned to New York to live and work after graduation, and always considered himself a New York resident. * * *
Under the circumstances here, where there was ample proof that Koffman was a New York resident and that Koffman’s presence in Connecticut as a college student was temporary, together with the fact that he was not required under Connecticut law to renounce any voter registration in another state … , petitioner fell short of meeting his burden by clear and convincing evidence that respondent does not meet the residency requirement of the NY Constitution. Matter of Quart v Kaufman. 2020 NY Slip Op 02904, First Dept 5-14-20
BELATED FILING OF COVER SHEETS, UNDER THE UNIQUE COVID-19-RELATED CIRCUMSTANCES IN NEW YORK CITY, WAS NOT A FATAL DEFECT (DISAGREEING WITH THE SECOND DEPARTMENT) (FIRST DEPT).
The First Department, reversing Supreme Court, disagreeing with the Second Department, determined that, given the unique Covid-19-related circumstances in New York City, the belated filing of designating-petition cover sheets was not a fatal defect:
This election law proceeding involves the belated filing of cover sheets where the delay in filing is attributable to illness or quarantine because of the current COVID-19 pandemic. We hold that under the unique circumstances existing in New York City during the past few months, and the specific health challenges alleged here, the belated filing of these specific documents is not a fatal defect. In so holding, we note that no challenge has been presented to the number of signatures in the designating petitions and no claim of fraud has been alleged. Indeed, there is no evidence of specific actual prejudice presented. Although respondent Board of Elections contends that a cover sheet is necessary for administrative convenience, that cannot outweigh the right to ballot access in the current unique circumstances. Matter of Mejia v Board of Elections in the City of N.Y., 2020 NY Slip Op 02902, First Dept 5-14-20
Similar issue and result in Matter of Mujumder v Board of Elections in the City of N.Y., 2020 NY Slip Op 02903, First Dept 5-14-20
ALTHOUGH MOTHER DID NOT APPEAR AT THE SCHEDULED CONFERENCE AND DID NOT HAVE A MERITORIOUS DEFENSE IN THIS NEGLECT PROCEEDING, SHE WAS NOT AWARE FINDINGS OF FACT WOULD BE MADE IN HER ABSENCE; DEFAULT ORDER VACATED ON DUE PROCESS GROUNDS (THIRD DEPT).
The Third Department, reversing Family Court, determined mother was deprived of her right to due process when findings of fact were made in her absence in this neglect proceeding. Although mother did not appear at a scheduled conference, mother was not aware findings of fact would be made:
A parent has a right “to be present at every stage of” a Family Ct Act article 10 proceeding as a matter of due process, but that right “is not absolute” … . Family Ct Act § 1042 provides that “a court may proceed with a hearing . . . in a parent’s absence, so long as the subject child is represented by counsel, and the absent parent may thereafter move to vacate the resulting order and schedule a rehearing” … . Vacatur of that order would ordinarily be warranted if, upon motion, the parent demonstrated “a meritorious defense to the petition, unless . . . [he or she] willfully refused to appear at the hearing” … . If the parent demonstrates that the default itself resulted from a deprivation of his or her “fundamental due process rights,” however, the default is a nullity and no showing of a meritorious defense is required … . …
… [A]lthough respondent was arguably on notice of the April 2018 conference, she did not receive notice that a potential fact-finding hearing might be conducted at it so as to satisfy due process … . Indeed, despite the references in the order of fact-finding to an inquest, there is no dispute that Family Court departed from “the proper course” of conducting a hearing in respondent’s absence by accepting the allegations in the petition as proven by virtue of respondent’s default … . It would offend due process to hold that respondent “default[ed] in attending a hearing that she did not know was going to happen and did not, in fact, happen” … . Thus, notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent’s motion. Matter of Arra L. (Christine L.), 2020 NY Slip Op 02829, Third Dept 5-14-20
PUBLIC VERSUS PRIVATE NUISANCE EXPLAINED; BECAUSE DEFENDANTS SOLD THEIR PROPERTY, THE APPEAL RELATED TO THE INJUNCTION CAUSE OF ACTION WAS MOOT (THIRD DEPT).
The Third Department determined plaintiffs’ private nuisance cause of action should not have been dismissed, but the public nuisance cause of action was properly dismissed. The Third Department noted that, because defendants’ property had been sold, the injunction aspect of the case was moot. The defendants had put in a parking area and a retaining wall which plaintiffs’ alleged blocked their view of oncoming traffic making it dangerous for plaintiffs’ to pull out from their driveway:
Plaintiffs’ complaint alleges that defendants paved a significant area of their front yard and proceeded to park cars and trucks thereon, and, as a result, their view of oncoming traffic was significantly hindered when they used their driveway. As a consequence, they claimed that they suffered great anxiety, as they continually worried about being in a traffic accident. What plaintiffs can ultimately prove, or whether damages of this sort are recoverable, is not our concern when determining a motion to dismiss for failure to state a cause of action … . Rather, “the dispositive inquiry is whether plaintiffs have a cause of action and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory” … . Here, after applying the strict standards of a pre-answer motion to dismiss, we conclude that Supreme Court erred in dismissing plaintiffs’ cause of action for private nuisance.
… “A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large” … . Plaintiffs have not alleged that defendants interfered with the use of a public place or public rights. The complaint alleges that plaintiffs and the public (pedestrian, cyclist or motorist) are at risk of suffering a collision. “[W]here the claimed injury is common to the entire community, a private right of action is barred” … . Moreover, we find without merit plaintiffs’ claim that they suffer a special damage in that they will suffer liability as a result of any collision that might occur. Even were we to conclude that this claim is not completely speculative, the injury proposed by plaintiffs is not different in kind, but merely in degree, to that which may be suffered by the public as a whole. As such, it does not qualify as a “special injury” so as to allow plaintiffs to bring a public nuisance cause of action … . Duffy v Baldwin, 2020 NY Slip Op 02836, Third Dept 5-14-20
REFERENCES TO DEVIATE BEHAVIOR AND USE OF FORCE IN PETITIONER-INMATE’S CRIME AND SENTENCE INFORMATION FORM AND HIS COMPAS RISK AND NEEDS ASSESSMENT INSTRUMENT NOT SUPPORTED BY THE SEXUAL OFFENSES COMMITTED; THE PETITION SEEKING CORRECTION OF THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).
The Third Department, reversing (modifying) Supreme Court, determined petitioner-inmate had raised legitimate issues about the contents of his Crime and Sentence Information (CSI) form and his COMPAS Risk and Needs Assessment Instrument requiring further proceedings in this Article 78 action. Specifically petitioner argued that references to “deviate” behavior and use of force in connection with sexual offenses were inaccurate:
… [W]ith respect to the CSI form, petitioner was not convicted of any crimes involving an element of “deviate” behavior … . Additionally, with regard to the challenged characterization in the COMPAS instrument indicating that petitioner committed a “[s]ex [o]ffense with [f]orce,” we note that petitioner was not convicted of a crime involving “force” or “forcible” contact … . Accordingly, to the extent that the inclusion of such references in the CSI form and COMPAS instrument could be perceived as misleading and be potentially prejudicial to “future deliberations concerning the petitioner’s status” … , we find that, at this stage of the proceeding, in the absence of a more developed record, petitioner has stated a potentially valid cause of action. Because respondent has yet to serve an answer in this matter, this matter must be remitted to Supreme Court for this purpose … . Matter of Staropoli v Botsford, 2020 NY Slip Op 02840, Third Dept 5-14-20
VOLUNTARY DISCONTINUANCES OF PRIOR FORECLOSURE ACTIONS AND THE RELATED CORRESPONDENCE DID NOT UNAMBIGUOUSLY DE-ACCELERATE THE DEBT; THEREFORE THE FORECLOSURE ACTION IS TIME-BARRED; TWO-JUSTICE DISSENT ARGUED THE CORRESPONDENCE DE-ACCELERATED THE DEBT (THIRD DEPT).
The Third Department, reversing Supreme Court, over a two-justice dissent, determined the foreclosure action was time-barred. The initial foreclosure action was in 2010. That action was discontinued and the mortgage was subsequently assigned three times. After a second discontinuance, the third foreclosure action was commenced in 2017. The majority concluded that the discontinuances and related correspondence did not de-accelerate the debt, so the statute of limitations kept running from the initial action in 2010. The dissenters argued the debt had been de-accelerated by correspondence with the defendant:
… [T]he voluntary discontinuance of the first two actions, without more, did not constitute an affirmative revocation of the initial acceleration of the debt … . That is particularly so because plaintiff’s predecessors in interest moved to discontinue each action due to title concerns, without addressing the prospect of revoking the acceleration and resuming installment payments … . * * *
[The plaintiffs’] letters do not indicate a clear and unambiguous return to an installment payment plan and, for all practical purposes, do not actually evidence any real intent to de-accelerate the loan. In effect, “plaintiff simply put defendant[s] on notice of its obligation to cure a . . . default and then promptly embarked on the notices required to initiate a [third] foreclosure action” … . In our view, these notices do not constitute affirmative actions to de-accelerate the mortgage … . U.S. Bank Natl. Assn. v Creative Encounters LLC, 2020 NY Slip Op 02844, Third Dept 5-14-20
PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN DENIED AND DEFENDANT’S CROSS MOTION TO RENEW SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED; E-FILING WAS VOLUNTARY IN CHENANGO COUNTY SO FAILURE TO E-FILE WAS NOT A GROUND FOR REJECTION OF DEFENDANT’S MOTION PAPERS (THIRD DEPT).
The Third Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment should have been denied and defendant’s cross motion to renew should have been granted. The court noted that Chenango County is a consensual or voluntary e-filing county and defendant’s hard copy filing should not have been rejected by the court (for failure to e-file):
… Supreme Court abused its discretion in granting plaintiff’s motion for a default judgment. Although defendant’s motion papers lacked specific details of the underlying circumstances for the delay, the delay herein was de minimis — one week — and should be excused … . Defendant timely opposed the motion, offering a meritorious defense. There is no indication that the default was willful or that plaintiff was prejudiced as a result of the late answer. Moreover, defendant appeared in the action when he opposed plaintiff’s motion for a preliminary injunction and temporary restraining order. Public policy favors the resolution of cases on the merits … . …
Supreme Court confused the cross motion to renew with a motion to reargue and summarily denied it since it was not made within 30 days. This time period applies solely to motions to reargue (see CPLR 2221 [d] [3] …). Preferred Mut. Ins. Co. v DiLorenzo, 2020 NY Slip Op 02845, Third Dept 5-14-20
ALTHOUGH IT IS NOT SETTLED WHETHER THE RAPE SHIELD LAW APPLIES TO A CIVIL PROCEEDING, SUPREME COURT HAD THE AUTHORITY TO PROHIBIT THE QUESTIONING OF PLAINTIFF’S DAUGHTER ABOUT HER SEXUAL HISTORY TO PREVENT EMBARRASSMENT AND HARASSMENT IN THIS NEGLIGENT SUPERVISION CASE (THIRD DEPT).
The Third Department upheld Supreme Court’s protective order prohibiting plaintiff’s child from being questioned about her sexual history. The complaint alleged the child was raped during a sleep over at defendants’ home. The complaint alleged several theories of liability, including negligent supervision. Supreme Court held that the Rape Shield Law applied to this civil case. The Third Department determined it did not need to reach that issue, holding that the court had the authority to prohibit the testimony to protect the child from embarrassment:
… Supreme Court was required to balance plaintiff’s concern that the child’s sexual history is irrelevant, and that questions of this nature are nothing more than a form of intimidation and embarrassment, against defendants’ argument that the child had a motive to fabricate the allegations of the assault because of a purported pregnancy. The record reveals that Supreme Court undertook a balancing of these concerns.
We find that plaintiff met her burden of showing annoyance and embarrassment. The child’s sexual history, sexual conduct and pregnancies are not relevant or material to the elements of the causes of action for negligence, battery, intentional infliction of emotional distress or loss of services … . Moreover, it has been determined that there is limited value to testimony concerning the sexual past of a victim of a sexual assault; instead, it often serves only to harass the victim and confuse the jurors … . Lisa I. v Manikas, 2020 NY Slip Op 02846, Third Dept 5-14-20
JUDGE SHOULD NOT HAVE, SUA SPONTE, TERMINATED THE GUARDIANSHIP OF AN INCAPACITATED PERSON WITHOUT HOLDING A HEARING (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, terminated the guardianship of an incapacitated person (IP) without holding a hearing:
In April 2016, Fanny K. commenced this proceeding pursuant to Mental Hygiene Law article 81 seeking to be appointed as the guardian to manage Angeliki K.’s property located in Greece. After a hearing, the Supreme Court determined that Angeliki K. (hereinafter the IP) was incapacitated within the meaning of Mental Hygiene Law article 81 and appointed Fanny K. (hereinafter the guardian) as the guardian of her property. In September 2018, due to the IP’s health problems and resultant inability to communicate in English, the IP was admitted to an assisted living and rehabilitation facility in Athens, Greece. In November 2018, the guardian moved for leave to change the IP’s place of abode from New York to the assisted living and rehabilitation facility, with the IP continuing to maintain her permanent residence in New York. The court, without a hearing, denied the motion and, sua sponte, terminated the guardianship due to a lack of a continuing nexus between the guardianship and New York.
The Supreme Court should not have, sua sponte, terminated the guardianship, without a hearing, as a guardianship may be terminated “only on application of a guardian, the incapacitated person, or any other person entitled to commence a proceeding under Mental Hygiene Law article 81 with a hearing on notice” (… see Mental Hygiene Law §§ 81.36[b], [c] …). Matter of Angeliki K. (Fanny K.), 2020 NY Slip Op 02786, Second Dept 5-13-20
MANUFACTURER AND SELLER OF THE PRODUCT WHICH ALLEGEDLY INJURED INFANT PLAINTIFF CANNOT SUE THE PARENTS FOR CONTRIBUTION ON A THEORY OF NEGLIGENT SUPERVISION OF THE INFANT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the third-party complaint brought by the defendant manufacturer and seller of a humidifier against the parents of the injured child, alleging negligent supervision of the child, should have been dismissed:
In March 2014, the then-10-month-old infant plaintiff allegedly was injured when she knocked over a humidifier and hot water spilled onto her foot. The infant’s father had placed the humidifier on the living room floor before leaving the apartment with the infant’s five-year-old sibling. The infant’s mother was in the living room when the accident occurred. In August 2014, this action to recover damages for the infant’s injuries was commenced against the defendants, which allegedly manufactured and sold the humidifier. In December 2015, the defendants commenced a third-party action against the parents for contribution. …
There is no legally cognizable cause of action to recover damages for injuries suffered by a minor child against his or her parent for negligent supervision … . Additionally, where a secondary right of contribution is dependent upon “the parent’s alleged failure to perform a duty owing to the plaintiff child, the absence of the primary cause of action defeats the . . . third-party complaint” … . Although there is an exception when the parent’s conduct implicates a duty owed to the public at large … , the acts complained of in the third-party complaint were encompassed within the intrafamily immunity for negligent supervision … . Martinez v Kaz USA, Inc., 2020 NY Slip Op 02776, Second Dept 5-13-20
WIRES WHICH CAUSED PLAINTIFF TO TRIP AND FALL WERE INTEGRAL TO THE WORK BEING PERFORMED AND CANNOT THEREFORE BE CONSIDERED DEBRIS WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 241(6) cause of action should have been dismissed. Plaintiff fell when his foot became entangled in electrical wires hanging from the ceiling. The wires were integral to the work being performed. Therefore the Industrial Code provision prohibiting the accumulation of debris did not apply. However the common law negligence (dangerous condition) cause of action properly survived summary judgment:
To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff “must set forth a violation of a specific rule or regulation promulgated by the Commissioner of the Department of Labor” … . Here, the plaintiff alleged a violation of 12 NYCRR 23-1.7(e)(2), which requires that “[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.” However, 12 NYCRR 23-1.7(e)(2) is “inapplicable [where] the material over which [a plaintiff] alleges he [or she] tripped was integral to the work being performed” … . Martinez v 281 Broadway Holdings, LLC, 2020 NY Slip Op 02773, Second Dept 5-13-20
DIFFERENT STANDARDS OF PROOF OF EMPLOYMENT DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW, AS OPPOSED TO THE NY STATE HUMAN RIGHTS LAW, EXPLAINED IN SOME DEPTH; PLAINTIFF’S CAUSE OF ACTION FOR GENDER DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW ON A THEORY OF A HOSTILE WORK ENVIRONMENT REINSTATED (SECOND DEPT).
The Second Department, in a comprehensive opinion by Justice Brathwaite Nelson, reversing (modifying) Supreme Court, determined plaintiff’s cause of action for gender discrimination on a theory of a hostile work environment under the NY City Human Rights Law should not have been dismissed. The Second Department held that the “materially adverse” change in employment conditions, which applies to the NY State Human Rights Law, does not apply to the NY City Human Rights Law. The standard under the NY City Human Rights Law is a showing that plaintiff was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic. The Second Department took pains to explain the different standards of proof under the State and City Human Rights Laws:
… [U]nder the City Human Rights Law, in order to demonstrate liability, a plaintiff need not establish that she or he was subjected to a “materially adverse” change to terms and conditions of employment, but only that she or he was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic … . * * *
The alleged comment by Denesopolis [plaintiff’s boss], that he did not “like women on this job because they have babies,” plainly expresses a view of the role of women in the workplace. Considering the totality of the circumstances, which include the plaintiff’s testimony that Denesopolis expressed displeasure upon learning of her transfer to his unit as a pregnant woman, and then again at her second pregnancy, we cannot say that this is a “truly insubstantial case” as a matter of law. In addition, while it might be inferred that the incidents in which Denesopolis publicly reprimanded the plaintiff and referred to her as an “empty suit” and “Sergeant do nothing” were related to deficiencies in her performance as a sergeant, on the defendants’ motion for summary judgment, we must view the facts in the light most favorable to the plaintiff. A jury could agree with the plaintiff that the conduct was based upon her pregnancies and conclude that the plaintiff was subject to a workplace in which she was treated less well than others because of her gender. Accordingly, the cause of action alleging gender discrimination on a theory of a hostile work environment under the City Human Rights Law must be reinstated. Golston-Green v City of New York, 2020 NY Slip Op 02768, Second Dept 5-13-20
DEFENDANT’S EXCUSE WAS NOT REASONABLE; MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should not have been granted. The excuse was not reasonable:
A defendant seeking to vacate a default in answering a complaint must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 5015[a][1] …). Here, the defendant’s proffered excuse that its president failed to open and review the contents of a package following its personal delivery upon him, and that the summons and verified complaint may inadvertently have been discarded thereafter, were insufficient to demonstrate a reasonable excuse for the default … . Elderco, Inc. v Kneski & Sons, Inc., 2020 NY Slip Op 02766, Second Dept 5-13-20
PROOF OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION WAS NOT IN ADMISSIBLE FORM; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The evidence of defendants’ default was not in admissible form:
To establish its prima facie entitlement to summary judgment in a mortgage foreclosure action, a plaintiff must submit the mortgage, the unpaid note, and evidence of the mortgagor’s default … . A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form … .
Here, Ostermann [plaintiff’s vice president], in her affidavit, did not specifically state that she had personal knowledge of the default. Moreover, to the extent that her knowledge was based on her review of business records, she did not identify what records she relied on and she did not attach them to her affidavit. Thus, the plaintiff failed to submit evidence in admissible form to establish the defendants’ default … . Since the plaintiff failed to establish, prima facie, that the defendants had defaulted on the subject note, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answers, and for an order of reference … . Deutsche Bank Natl. Trust Co. v McGann, 2020 NY Slip Op 02765, Second Dept 5-13-20
A DEFENSE WITNESS HELD OUT AS DISINTERESTED AND OBJECTIVE WAS IN FACT EMPLOYED BY THE DEFENDANTS; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the jury verdict in this personal injury case should have been granted. One of the issues in the trial was the identity of the party which left a pipe in a tunnel. Plaintiff alleged he was injured when he tripped over the pipe. Defendants presented a witness, Dudin, who testified the defendants were not responsible for leaving the pipe in the tunnel. Dudin was represented as a disinterested witness when, in fact, he was employed by the defendants:
Pursuant to CPLR 4404(a), a trial court may order a new trial “in the interest of justice.” “A motion pursuant to CPLR 4404 (a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .
Here, the record reveals that the defendants affirmatively represented to the jury that Dudin was a disinterested, objective witness, notwithstanding that he was employed by the defendants at the time of trial. During summation, the defendants’ counsel stated that Dudin was “with the construction manager,” and that he was “not on [the defendants’] payroll,” but rather was a representative of the DEP [Department of Environmental Protection]. Additionally, the defendants’ counsel stated that, “you heard from Mr. Dudin, who is with the DEP now, this is not [the defendants’] stuff” in the tunnel. Counsel specifically referred to Dudin as “an objective witness” who “has no dealings with [the defendants],” and stated that he was “there to help the [injured] plaintiff.” Under the circumstances, we find that the jury should have had the opportunity to consider Dudin’s status as an employee of the defendants in assessing his credibility and in determining whether this relationship biased or influenced the witness’s testimony … . D’Amato v WDF Dev., LLC, 2020 NY Slip Op 02761, Second Dept 5-13-20
DEFENDANTS DID NOT DEMONSTRATE, PRIMA FACIE, THE UNEVEN SEWER GRATE WAS A TRIVIAL DEFECT; THEREFORE THE BURDEN OF PROOF NEVER SHIFTED TO THE PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff allegedly tripped on an uneven sewer grate in a parking lot. The evidence did not demonstrate, prima facie, that the defect was trivial. Therefore the burden of proof on the summary judgment motion never shifted to plaintiff:
“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or per se rule that the condition must be of a certain height or depth in order to be actionable … . Physically small defects may be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . Bishop v Pennsylvania Ave. Mgt., LLC, 2020 NY Slip Op 02756, Second Dept 5-13-20
EVIDENCE OF ALLEGED FRAUD IN THE ACKNOWLEDGMENT OF SIGNATURES WAS NOT SUFFICIENT TO SUPPORT THE INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT).
The Fourth Department, reversing Supreme Court. determined respondent’s designating petition should not have been invalidated based on allegations of fraud in acknowledging signatures:
… [T]he court based its determination to invalidate the designating petition on the testimony of a single signatory, who stated that although respondent was the subscribing witness on the petition that she signed, her signature was actually witnessed by a younger man of a different race. While such evidence may warrant invalidation of a designating petition … , cross-examination of the signatory—during which she acknowledged signing four City Court petitions, including one for an individual whose description was similar to that of respondent—called her testimony on direct examination into question. …
… [W]e conclude that respondent’s apparent failure to administer to one signatory “an oath . . . calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs’ ” … did not, on its own, constitute evidence of fraud requiring invalidation of his designating petition … . Matter of Monto v Zeigler, 2020 NY Slip Op 02753, Fourth Dept 5-14-20
ALTHOUGH THE PARTY TWICE FILED FOR BANKRUPTCY WITHOUT LISTING THE MEDICAL MALPRACTICE ACTION AS AN ASSET, THE BANKRUPTCY PROCEEDING WAS SUBSEQUENTLY REOPENED AND THE ACTION WAS ADDED AS AN ASSET; AT THAT POINT THE BANKRUPTCY TRUSTEE BECAME THE PLAINTIFF IN THE MEDICAL MALPRACTICE ACTION AND THE DOCTRINE OF JUDICIAL ESTOPPEL, BASED UPON THE PARTY’S INITIAL FAILURE TO LIST THE ACTION AS AN ASSET, DID NOT APPLY TO THE TRUSTEE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the defendant’s motion to dismiss the medical malpractice complaint on judicial estoppel grounds should not have been granted. Vormnadiryan commenced a medical malpractice action in 2006. In two bankruptcy proceedings in 2008 and 2016 the medical malpractice action was not listed as an asset by Vormnadiryan. In 2017 Vormnadiryan opened the 2008 bankruptcy action and the medical malpractice action was added as an asset, making the bankruptcy trustee the plaintiff in that action. The Second Department determined Vormandiryan’s initial failure to list the malpractice action as an asset did not subject the bankruptcy trustee, as the plaintiff in the malpractice action, to the judicial estoppel doctrine:
“The integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets. By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims. Thus, the doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding” … . “Because the doctrine is primarily concerned with protecting the judicial process, relief is granted only when the risk of inconsistent results with its impact on judicial integrity is certain” … . …
Here, the 2008 bankruptcy proceeding was reopened by the Bankruptcy Court so that the 2006 medical malpractice action could be identified as an asset of the bankruptcy estate. Therefore, judicial estoppel cannot be predicated on Vormnadiryan’s failure to list the action as an asset when she originally filed the 2008 bankruptcy petition … . Further, once a bankruptcy proceeding is commenced, all legal or equitable interests of the debtor become part of the bankruptcy estate, including any causes of action (see 11 USC § 541[a][1] … ). The trustee in bankruptcy, as representative of the estate, “has capacity to sue and be sued” … . Pereira v Meisenberg, 2020 NY Slip Op 02815, Second Dept 5-13-20
BECAUSE THE HOLDER OF A FIRST MORTGAGE WAS A DEFENDANT IN THE TAX FORECLOSURE PROCEEDINGS, THE MORTGAGE HOLDER DID NOT NEED TO FILE ITS OWN FORECLOSURE ACTION TO ENFORCE ITS LIEN ON THE SURPLUS TAX-FORECLOSURE-SALE PROCEEDS (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Scheinkman, determined that HPD, the holder of a first mortgage on property which was the subject of a tax foreclosure, was entitled to the surplus funds from the tax foreclosure sale. The issue was whether HPD’s action seeking the surplus was time-barred because it didn’t enforce the lien on the surplus within six years of the tax foreclosure sale. The Second Department held no further action to enforce the lien was necessary because HPD was a defendant in the tax foreclosure proceedings:
… HPD’s appearance in the tax lien foreclosure action put [the property owner] and anyone else interested in a potential surplus on notice of HPD’s claims. To require HPD to commence a separate foreclosure action, when an action to foreclose the tax lien was already pending, would serve no useful purpose. NYCTL 1997-1 Trust v Stell, 2020 NY Slip Op 02802, Second Dept 5-13-20
THE GOVERNOR’S COVID-19-RELATED REDUCTION IN THE REQUIRED NUMBER OF DESIGNATING-PETITION SIGNATURES UNDER THE ELECTION LAW DOES NOT APPLY TO THE REQUIRED NUMBER OF DESIGNATING-PETITION SIGNATURES UNDER THE NEW YORK CITY CHARTER (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the governor’s covid-19-related reduction in the threshold number of designating-petition signatures required under the Election Law did not apply to the threshold number of signatures required by the New York City Charter:
There is no evidence that the Governor intended to alter the New York City Charter’s threshold of 450 signatures as opposed to the Election Law statutory threshold of 900. Given that the Governor specifically referred to the Election Law threshold as providing the relevant baseline to reduce the number of signatures in Executive Order No. 202.2, to the extent that there may be any conflict by application of a different threshold baseline set forth in the New York City Charter, Executive Order (Cuomo) No. 202.3 (9 NYCRR 8.202.3) would warrant suspension of the contrary New York City Charter provision. Matter of Council v Zapata, 2020 NY Slip Op 02750, Second Dept 5-11-20