Page 1037 – New York Appellate Digest

/ Negligence

SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department determined defendant corporation’s (FHGC’s) motion for summary judgment in this traffic accident case was properly granted. FHGC was re-sodding an area near the curb. FHGC’s employee signaled to defendant driver to stop. Defendant driver (Miketta) then backed down the road and struck plaintiff’s decedent. Plaintiff sued Miketta and FHGC. The court held that the order to stop merely furnished a condition for the accident to occur, but was not a proximate cause of the accident:

… “[L]iability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event’ but was not one of its causes” … .

… FHGC demonstrated its prima facie entitlement to judgment as a matter of law by presenting evidence that its employees’ conduct in performing work near the roadway merely furnished the condition or occasion for the accident, and was not a proximate cause of the decedent’s injuries. Miketta’s decision to reverse her vehicle and drive back down the one-way street, ultimately striking the decedent, was the sole proximate cause of the accident … . Goldstein v Kingston, 2017 NY Slip Op 06429, Second Dept 9-13-17

NEGLIGENCE (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT))/TRAFFIC ACCIDENTS (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT))/PEDESTRIANS (SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT))

September 13, 2017

/ Civil Procedure, Employment Law, Labor Law

PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).

The Second Department determined the plaintiff home health care workers were properly certified to bring a class action suit alleging inadequate pay in violation of the minimum wage requirements of the Labor Law. The plaintiffs worked at clients’ residences in 24-hour shifts. They were paid an hourly rate for the 12 daytime hours of their 24-hour shifts and a flat rate for the 12 nighttime hours. The plaintiffs argue they were entitled to the minimum wage for each hour of their 24-hour shifts:

The plaintiffs were required to be at the clients’ residences and were also required to perform services there if called upon to do so. To interpret that regulation to mean that the plaintiffs were not, during those nighttime hours, “required to be available for work” simply because it turned out that they were not called upon to perform services is contrary to the plain meaning of “available” … . …[T]o the extent that the members of the proposed class were not “residential” employees who “live[d] on the premises of the employer,” they were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep and meals … . …

… [T]he plaintiffs established the existence of the five prerequisites to class certification … , and none of the factors listed in CPLR 902 warranted a denial of the motion … . Andryeyeva v New York Health Care, Inc., 2017 NY Slip Op 06421, Second Dept 9-13-17

EMPLOYMENT LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/LABOR LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CLASS ACTIONS (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/HOME HEALTH CARE WORKERS (EMPLOYMENT LAW, PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/MINIMUM WAGE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))

September 13, 2017

/ Civil Procedure, Education-School Law

AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT).

The Second Department determined the defendant college’s motion to dismiss plaintiff-student’s breach of contract complaint as time-barred was properly granted. Plaintiff-student had received a failing grade and was ultimately dismissed from the program. The plaintiff’s mechanism for redress was an Article 78 proceeding, which has a four-month statute of limitations. The fact that the plaintiff attempted to bring a timely breach of contract action was to no avail:

“Although decisions made by educational institutions as to academic issues are not completely beyond the scope of judicial scrutiny, review is restricted to special proceedings under CPLR article 78, and only to determine whether the decision was arbitrary, capricious, irrational, or in bad faith” … .

Here, the plaintiff’s complaint challenged her dismissal from Teachers College following her receipt of a failing grade in the elective course. This is an academic determination for which the plaintiff should have sought review in the context of a proceeding pursuant to CPLR article 78… . Since the plaintiff’s claims would have been barred by the four-month statute of limitations applicable to such a proceeding … , the Supreme Court properly granted Teachers College’s motion to dismiss the complaint on the ground that it was time-barred … . Hernandez v Teachers Coll., Columbia Univ., 2017 NY Slip Op 06433, Second Dept 9-13-17

EDUCATION-SCHOOL LAW (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/COLLEGES (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CIVIL PROCEDURE (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/ARTICLE 78 (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/STATUTE OF LIMITATIONS (ARTICLE 78, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CONTRACT LAW (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))

September 13, 2017

/ Civil Procedure, Defamation

MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Chambers, determined certain statements made by defendant Eliot Spitzer (former New York Attorney General) concerning Hank Greenberg (former CEO of AIG) supported defamation causes of action. The opinion went through the long list of statements alleged to be defamatory in the complaint in the context of Spitzer’s motions to dismiss. Many, but not all, of the statements were found actionable and the complaint was deemed to have adequately alleged the actionable statements were made with malice:

This appeal presents an opportunity to discuss in some detail the proper application of CPLR 3211(a)(1) and (7) in the context of an action sounding in defamation. * * *

“Since falsity is a necessary element of a defamation cause of action and only facts’ are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action'”… .Thus, “[a]n expression of pure opinion is not actionable, . . . no matter how vituperative or unreasonable it may be” … .

“A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts” … . Conversely, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable” … .

“Whether a particular statement constitutes an opinion or an objective fact is a question of law” … . “In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers [or listeners] that the statement is likely to be opinion, not fact” … . “The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion” … . Greenberg v Spitzer, 2017 NY Slip Op 06432, Second Dept 9-13-17

September 13, 2017

/ Criminal Law, Evidence

(HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT).

The Second Department, in affirming defendant’s conviction, noted that it was error to allow the prosecutor to cross-examine a defense witness about the witness’s gang affiliation. Gang membership had no relationship to the charges:

The Supreme Court erred in allowing the prosecutor to cross-examine a defense witness regarding her possible gang affiliations since there was no connection between gang membership and the alleged crime … . It was also improper to allow the prosecutor to introduce extrinsic evidence to impeach that witness’s credibility when she denied being affiliated with a gang … . However, because there was overwhelming evidence of the defendant’s guilt and no significant probability that these errors contributed to the defendant’s convictions, the errors were harmless … . People v Chinloy, 2017 NY Slip Op 06450, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE, (HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT))

September 13, 2017

/ Criminal Law, Evidence

DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT).

The Second Department, modifying Supreme Court, determined charges relating to a forged deed were not protected the by the transactional immunity afforded grand jury witnesses. Defendant had testified before a grand jury about a burglary at real property she claimed to own. Subsequently defendant was charged with grand larceny (stealing the real property), possessing a forged deed, filing the forged deed and perjury (in the grand jury proceeding). The Second Department determined the grand larceny count was properly dismissed because it directly related to defendant’s testimony before the grand jury (claiming that she owned the real property). However, the charges forged deed charges were not related to her grand jury testimony and therefore those charges were reinstated:

The defendant’s grand jury testimony that she was the owner of the real property would be relevant to establishing the defendant’s alleged intent to deprive the rightful owners of the real property … . Thus, the defendant testified to the “transaction, matter or thing” for which she stands indicted … , and her testimony may “tend to a conviction when combined with proof of other circumstances which others may supply” … . Accordingly, the Supreme Court properly found that the defendant’s testimony conferred immunity upon her from prosecution of grand larceny in the second degree. * * *

… [A]lthough the defendant testified that she owned the real property, she did not testify how she purportedly came into ownership of the real property. Her claim of ownership is not relevant to establishing her knowledge that the deed to the real property was forged, her intent to use that deed to defraud another person, her presentment of the deed to the City Register, or her belief that the deed would be accepted for filing … , and thus, does not “tend to a conviction when combined with proof of other circumstances which others may supply” … . Under these circumstances, the defendant was not entitled to immunity from prosecution for criminal possession of a forged instrument in the second degree and offering a false instrument for filing in the first degree, and counts two and three of the indictment must be reinstated. People v O’Neal, 2017 NY Slip Op 06461, Second Dept 9-13-17

CRIMINAL LAW (IMMUNITY, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IMMUNITY, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/GRAND JURY (IMMUNITY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/IMMUNITY (CRIMINAL LAW, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))

September 13, 2017

/ Criminal Law, Evidence

(HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT).

The Second Department, in affirming defendant’s conviction, noted that it was (harmless) error to show the jury the injured child in this shaken baby case because the extent of the long-term effects of the injury was not an element of the crime:

We agree with the defendant that the Supreme Court improvidently exercised its discretion in allowing the People to display the injured child to the jury during the mother’s testimony, since the extent of the child’s long-term injuries was not an element of the crime … , and such display only served to prejudice the defense by arousing the emotions of the jury … . Nevertheless, the error was harmless … . Given the extensive and uncontroverted medical evidence supporting the diagnosis of shaken baby syndrome and that the child’s injuries could have only occurred when the child was with the defendant, the evidence of the defendant’s guilt was overwhelming. Moreover, there is no significant probability that the jury would have acquitted the defendant had it not been for the error … . People v Narine, 2017 NY Slip Op 06460, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/SHAKEN BABY SYNDROME (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))

September 13, 2017

/ Criminal Law, Evidence

(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).

The Second Department, in affirming the conviction of defendants as part of a large scale heroin distribution operation, determined it was error to allow the lead detective to explain to the jury the roles played by the persons recorded by the wiretaps. It was also error to admit the wiretap orders into evidence. Given the overwhelming evidence, however, the errors were deemed harmless:

… [W]hile “it was error to permit the prosecutor to elicit testimony [from the investigating detective] as to the roles played by the individuals overheard in the phone calls[ ] and the relationships among them, . . . and the meanings of certain case-specific’ terms that he had discovered in the course of the investigation” … , the error was harmless, “as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is no significant probability that, but for the error, the verdict . . . would have been less adverse'” … .

The County Court also improvidently exercised its discretion in admitting into evidence the wiretap court orders. Although the court orders were relevant, as authorizing the wiretapping that led to a large part of the People’s evidence, and their admission had a tendency to prove the existence of a material fact, i.e., that the wiretapping was authorized … , that same fact could have been established without the prejudice they caused. Nevertheless, here, too, the error was harmless. People v Guzman, 2017 NY Slip Op 06454, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/WIRETAPS (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EAVESDROPPING (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))

September 13, 2017

/ Civil Rights Law, Municipal Law

42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s 42 USC 1983 cause of action, as well as the malicious prosecution cause of action, should not have been dismissed. The court noted that the notice of claim need not name any individual police officers who are subsequently sued (acknowledging a split of authority on the issue). The court also explained the statutes of limitations as they apply to false arrest, false imprisonment, malicious prosecution and 42 USC 1983 causes of action:

The complaint alleged that the defendants arrested, detained, and prosecuted the plaintiff without probable cause and that they knew that the criminal complaint contained falsehoods. The eyewitness’s affidavit … supported these allegations by asserting that police and an ADA coerced the eyewitness to make a false identification of the plaintiff. …

Further, … the eyewitness’s affidavit did not present feigned issues of fact. The eyewitness did not give any prior testimony in this action … . … [H]is affidavit did not contradict the plaintiff’s prior testimony, including the plaintiff’s deposition testimony that the eyewitness was “scared” when the police talked to him about the shooting. …

[T]he plaintiff raised a triable issue of fact as to whether Detective Failla’s evaluation of probable cause was objectively reasonable, thus precluding an award of summary judgment in Detective Failla’s favor on the ground of qualified immunity … .

… [W]e have held that the plain language of General Municipal Law § 50-e(2) does not require a notice of claim to “[list] the names of the individuals who allegedly committed the wrongdoing” … . Williams v City of New York, 2017 NY Slip Op 06477, Second Dept 9-13-17

CIVIL RIGHTS LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/42 USC 1983 (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MUNICIPAL LAW (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/INTENTIONAL TORTS (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, 42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, INDIVIDUAL POLICE OFFICERS NEED NOT BE NAMED IN THE NOTICE OF CLAIM (SECOND DEPT))/FALSE ARREST (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/FALSE IMPRISONMENT (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))/MALICIOUS PROSECUTION (42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED, STATUTE OF LIMITATIONS EXPLAINED (SECOND DEPT))

September 13, 2017

/ Civil Procedure, Foreclosure

QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a question of fact was raised whether plaintiff bank was aware defendants observed Saturday as a holy day, thereby invalidating nail and mail service on Saturday in this foreclosure action:

General Business Law § 13 provides: “Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.”

The defendants contend that the plaintiff’s counsel was aware that they are observant, Orthodox Jewish persons who adhere to the Sabbath, and thus, the Saturday affixation of process to the door of their residence was invalid. This appears to be an issue of first impression for this Court. We agree with the other courts that have addressed the issue, which have consistently held, for more than a century, that service in violation of General Business Law § 13, or its predecessor statute, is void, and personal jurisdiction is not obtained over the party served … . Moreover, we hold that the statute applies not only to personal service upon a defendant, but also to the affixation portion of “nail and mail” service pursuant to CPLR 308(4) on the door of a defendant’s residence, as occurred here … . JPMorgan Chase Bank, N.A. v Lilker, 2017 NY Slip Op 06434, Second Dept 9-13-17

CIVIL PROCEDURE (NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/NAIL AND MAIL (GENERAL BUSINESS LAW, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/GENERAL BUSINESS LAW (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))

September 13, 2017

Search Results

SIGNALING THE DRIVER TO STOP FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT, THE DRIVER’S DECISION TO BACK UP WAS THE PROXIMATE CAUSE OF HER STRIKING PLAINTIFF’S DECEDENT (SECOND DEPT).

PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).

AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT).

MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT).

(HARMLESS) ERROR TO ALLOW CROSS-EXAMINATION OF DEFENSE WITNESS ABOUT HER GANG AFFILIATION, GANG MEMBERSHIP HAD NO RELATIONSHIP TO THE CHARGES (SECOND DEPT).

DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT).

(HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT).

(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).

42 USC 1983 AND MALICIOUS PROSECUTION CAUSES OF ACTION AGAINST THE CITY AND A POLICE OFFICER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT).

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