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MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined petitioner’s motion to renew the petition for leave to file a late notice of claim was erroneously deemed a motion to reargue (by Supreme Court) and was erroneously denied. Leave to file a late notice of claim should have been granted. The wrongful death action was brought on behalf of a county worker who was killed when he fell off the back of a dump truck after the truck allegedly struck a bump in the road. The Second Department noted: (1) the 90-day period for filing a notice of claim runs from the appointment of the administrator of decedent’s estate; (2) the motion presented new evidence which was not previously available and was therefore a motion to renew, not reargue; (3) the county had notice of the facts of the action within the 90-day period; (4) the county did not demonstrate prejudice related to the delay in filing the notice of claim (even though the road defect had been repaired):

The County acquired actual knowledge of the essential facts constituting the claim before a representative of the estate was appointed. The [police department] conducted an investigation, took photographs of, inter alia, the subject roadway condition, obtained a statement from the driver of the truck, and prepared a case report that detailed the nature and the alleged cause of the accident. In addition, … Inasmuch as the County acquired timely, actual knowledge of the essential facts of the claim and actually conducted an investigation, the petitioner made an initial showing that the County was not prejudiced by his delay in serving a notice of claim … . The County claims that it will nonetheless be prejudiced by the delay because the roadway where the accident occurred has been repaved and because it will be unable to locate witnesses. The County, however, had recognized the need for repairs of the roadway before the petitioner was appointed as administrator, and it issued work orders to repair the roadway only a few days after the petitioner was appointed. Thus, any prejudice resulting from the changed condition of the road was not caused by the petitioner’s delay in serving a notice of claim … . In any event, the County took photographs of the defect and inspected the location after the accident … . The County also failed to make a showing that any of the witnesses are unavailable. Thus, the County failed to respond to the petitioner’s initial showing as to lack of prejudice with a particularized showing that the petitioner’s delay in serving a notice of claim will prejudice it in its defense on the merits … . Matter of Kerner v County of Nassau, 2017 NY Slip Op 04277, 2nd Dept 5-31-17

MUNICIPAL LAW (MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRUSTS AND ESTATES (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (MOTION TO RENEW, MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS  (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)

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PLAINTIFF SLIPPED ON ROSIN PAPER WHICH WAS PLACED ON THE STEPS AS AN INTEGRAL PART OF THE WORK, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED.

The Second Department determined plaintiff’s Labor Law causes of action were properly dismissed. Plaintiff slipped and fell on rosin paper on a step. Use of rosin paper was an integral part of the work. The court determined the Labor Law 240 (1) cause of action was properly dismissed because the accident was not caused by the operation of gravity within the meaning of the statute and the Labor Law 241 (6) cause of action was properly dismissed because the rosin paper was not a foreign substance:

In support of that branch of their motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff’s injuries were not the direct consequence of the application of the force of gravity to an object or person … and, thus, fell outside the ambit of Labor Law § 240(1). …

The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action, premised upon a violation of 12 NYCRR 23-1.7(d), by establishing that the protective rosin paper upon which the plaintiff slipped was an integral part of the tile work … .As such, the rosin paper does not constitute a “foreign substance” within the meaning of 12 NYCRR 23-1.7(d) … . Lopez v Edge 11211, LLC, 2017 NY Slip Op 04262, 2nd Dept 5-31-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF SLIPPED ON ROSIN PAPER WHICH WAS PLACED ON THE STEPS AS AN INTEGRAL PART OF THE WORK, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED)

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PLAINTIFF FELL FROM AN UNSECURED A-FRAME LADDER THAT SHIFTED FOR NO APPARENT REASON, SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED.

The Second Department determined plaintiff’s motion for summary judgment was properly granted in this Labor Law 240 (1) action based upon the allegation an unsecured A-frame ladder shifted for no apparent reason cause plaintiff to fall from it:

Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites… . “To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” … .

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). According to [plaintiff’s] deposition testimony, he was standing on an unsecured A-frame ladder when the ladder shifted for no apparent reason, causing him to fall … . In opposition, [defendant] failed to raise a triable issue of fact as to whether Alvarez’s own actions were the sole proximate cause of the accident … . Alvarez v Vingsan L.P., 2017 NY Slip Op 04241, 2nd Dept 5-31-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF FELL FROM AN UNSECURED A-FRAME LADDER THAT SHIFTED FOR NO APPARENT REASON, SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF FELL FROM AN UNSECURED A-FRAME LADDER THAT SHIFTED FOR NO APPARENT REASON, SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED)

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ALTHOUGH THE BUILDING OWNER WAS AN ADDITIONAL INSURED ON THE LESSEE’S POLICY, THE INSURER HAD NO DUTY TO DEFEND AN ACTION STEMMING FROM A SLIP AND FALL IN THE BUILDING PARKING LOT, THE LEASE DID NOT CALL FOR MAINTENANCE OF THE PARKING LOT BY THE LESSEE.

The Second Department determined the insurer of a lessee had no duty to defend an action by plaintiff who slipped and fell in the parking lot of the building. The lease included no obligation to maintain the parking lot. Although the building owner was an additional insured on the lessee’s policy, the injury was not the result of a bargained-for risk:

An insurer’s duty to defend is “exceedingly broad”… . An additional insured is entitled to the same coverage as if it were a named insured … . “If any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action” … . The phrase “arising out of” requires “only that there be some causal relationship between the injury and the risk for which coverage is provided” … . “[A]n insurer does not wish to be liable for losses arising from risks associated with a premises for which the insurer has not evaluated the risk and received a premium” … . Moreover, “[u]nambiguous provisions of an insurance contract must be given their plain and ordinary meaning” … . The interpretation of policy language is a question of law for the courts … .

Here, [the insurer] established its prima facie entitlement to judgment as a matter of law. The additional insured endorsement unambiguously provided that [the building owner] was an additional insured for liability “arising out of” the “ownership, maintenance or use” of the “premises leased” to [lessee]. [The lessee] leased only a portion of the building from [the owner], not the parking lot where the accident occurred, and it had no duty to maintain the parking lot. As such, there was no causal relationship between the injury and the risk for which coverage was provided, and [plaintiff’s] injury was not a bargained-for risk … . Atlantic Ave. Sixteen AD, Inc. v Valley Forge Ins. Co., 2017 NY Slip Op 04243, 2nd Dept 5-31-17

INSURANCE LAW (ALTHOUGH THE BUILDING OWNER WAS AN ADDITIONAL INSURED ON THE LESSEE’S POLICY, THE INSURER HAD NO DUTY TO DEFEND AN ACTION STEMMING FROM A SLIP AND FALL IN THE BUILDING PARKING LOT, THE LEASE DID NOT CALL FOR MAINTENANCE OF THE PARKING LOT BY THE LESSEE)/LANDLORD-TENANT (INSURANCE LAW, ALTHOUGH THE BUILDING OWNER WAS AN ADDITIONAL INSURED ON THE LESSEE’S POLICY, THE INSURER HAD NO DUTY TO DEFEND AN ACTION STEMMING FROM A SLIP AND FALL IN THE BUILDING PARKING LOT, THE LEASE DID NOT CALL FOR MAINTENANCE OF THE PARKING LOT BY THE LESSEE)/SLIP AND FALL (INSURANCE LAW, ALTHOUGH THE BUILDING OWNER WAS AN ADDITIONAL INSURED ON THE LESSEE’S POLICY, THE INSURER HAD NO DUTY TO DEFEND AN ACTION STEMMING FROM A SLIP AND FALL IN THE BUILDING PARKING LOT, THE LEASE DID NOT CALL FOR MAINTENANCE OF THE PARKING LOT BY THE LESSEE)

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REQUIREMENT THAT COVERAGE CANNOT BE DENIED UNLESS THE GROUND FOR THE DENIAL IS SPECIFIED IN THE DISCLAIMER LETTER APPLIES ONLY TO DEATH AND BODILY INJURY CLAIMS, THE INSURER’S MOTION FOR SUMMARY JUDGMENT BASED ON A VANDALISM EXCLUSION IN THIS PROPERTY DAMAGE CASE SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant insurer’s motion for summary judgment should have been granted. The policy contained an exclusion for fire caused by vandalism if the property had been vacant for 90 days. Plaintiffs acknowledged the property had been vacant for six months at the time of the fire, which was deemed to have been deliberately set. Supreme Court denied the motion pursuant to Insurance Law 3420 (d) which provides that coverage cannot be denied unless the ground for the denial is specified in the disclaimer letter. However, the Second Department noted that Insurance Law 3420 (d) only applies to death and bodily injury claims, not property damage claims:

Contrary to the Supreme Court’s determination, Insurance Law § 3420(d) expressly applies only to claims involving death and bodily injury, and has no application to claims for property damage such as the one in the present case… . . Moreover, the defendant is not precluded from invoking the vandalism exclusion under the common-law principles of waiver or estoppel …, since the plaintiffs have adduced no evidence that the defendant intentionally relinquished its right to rely on that exclusion or lulled the plaintiffs into sleeping on their rights and thereby prejudiced them by its conduct … . Swanson v Allstate Ins. Co., 2017 NY Slip Op 04311, 2nd Dept 5-31-17

INSURANCE LAW (REQUIREMENT THAT COVERAGE CANNOT BE DENIED UNLESS THE GROUND FOR THE DENIAL IS SPECIFIED IN THE DISCLAIMER LETTER APPLIES ONLY TO DEATH AND BODILY INJURY CLAIMS, THE INSURER’S MOTION FOR SUMMARY JUDGMENT BASED ON A VANDALISM EXCLUSION IN THIS PROPERTY DAMAGE CASE SHOULD HAVE BEEN GRANTED)/DISCLAIMER LETTER (INSURANCE LAW, REQUIREMENT THAT COVERAGE CANNOT BE DENIED UNLESS THE GROUND FOR THE DENIAL IS SPECIFIED IN THE DISCLAIMER LETTER APPLIES ONLY TO DEATH AND BODILY INJURY CLAIMS, THE INSURER’S MOTION FOR SUMMARY JUDGMENT BASED ON A VANDALISM EXCLUSION IN THIS PROPERTY DAMAGE CASE SHOULD HAVE BEEN GRANTED)

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DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION.

The Second Department, over a partial dissent, determined the evidence supported defendant’s conviction for depraved indifference murder in this driving-while-intoxicated/vehicular-homicide case. Defendant, who was intoxicated and high on marijuana, drove at high speeds through residential neighborhoods, ignoring traffic lights at intersections. A collision an an intersection split the victim’s (Whether’s) car in two and killed him instantly. The dissent argued the high evidence-threshold for depraved indifference murder was not met:

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life, [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25[2]). Depraved indifference is a culpable mental state which “is best understood [*3]as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” … . Thus, “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” … . “The mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence” … .

Here, the evidence proved beyond a reasonable doubt that the defendant recklessly engaged in conduct which created a grave risk of death to another person. First, the defendant was knowingly driving with a revoked driver license. Second, the defendant was driving while intoxicated with a BAC of approximately 0.25%, and high on marijuana. Third, the defendant engaged in a high-speed chase with the police for approximately two miles. Fourth, during this chase, the defendant sped through narrow streets of a residential neighborhood, traveling at speeds of more than double the legal limit. The defendant also ran through numerous stop signs and red traffic lights, without slowing down.

The evidence further demonstrated that prior to the crash, the defendant sped eastbound down Pine Street, a residential street with stop signs and traffic lights, reaching a speed of over 80 miles per hour. Perhaps most significantly, the compelling circumstantial evidence demonstrated that as the defendant approached a red traffic light at the intersection of Guy Lombardo Avenue, he narrowly missed another vehicle that crossed the intersection, and seconds later, without slowing down, he ran the red light and crashed into Whethers’ vehicle with such force that he split the vehicle in two, instantly killing Whethers. The direct and circumstantial evidence proved that the defendant deliberately drove his vehicle into this intersection with an utter disregard for the value of human life, and thus was legally sufficient to support the determination that the defendant acted with depraved indifference … . People v Williams, 2017 NY Slip Op 04302, 2nd Dept 5-31-17

 

CRIMINAL LAW (EVIDENCE, DEPRAVED INDIFFERENCE MURDER, DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)/EVIDENCE (CRIMINAL LAW, DEPRAVED INDIFFERENCE MURDER, DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)/DEPRAVED INDIFFERENCE MURDER  DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION)

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DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED.

The Second Department determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel was properly granted. The hearing demonstrated defendant could have pled to an offense that would not result in mandatory deportation:

… [D]efendant established that he was denied the effective assistance of counsel because his counsel failed to attempt to negotiate a plea to a crime that would not have constituted an aggravated felony under federal law, and therefore would not have subjected him to mandatory deportation. The record establishes that the People were willing to accept a plea to a crime pursuant to Penal Law § 220.16(12) that would not have subjected the defendant to mandatory deportation and that defense counsel did not make such a request because he was not aware that a plea pursuant to Penal Law § 220.16(12) would not have subjected the defendant to mandatory deportation … . Moreover, defense counsel testified at a hearing on the motion to vacate the judgment of conviction that, had he known that a plea pursuant to Penal Law § 220.16(1) would have subjected the defendant to mandatory deportation, he would have attempted to negotiate a plea under Penal Law § 220.16(12) and would have advised the defendant not to take the plea that he ultimately took. This evidence supports the court’s finding that the defendant was not afforded meaningful representation as guaranteed by the New York Constitution …

Further, in light of the People’s admission that they would have been amenable to such a plea had defense counsel raised the issue, the defendant established that he was prejudiced by defense counsel’s conduct in failing to attempt to negotiate a plea that would not have subjected the defendant to mandatory deportation … . In addition, since the People refused at the time of the hearing on the motion to consent to vacate the defendant’s conviction so as to have the case restored to the calendar to allow the defendant to plead pursuant to Penal Law § 220.16(12), this further establishes that defense counsel’s failure to attempt to negotiate a plea pursuant to Penal Law § 220.16(12) at a time when the People were amenable to such a plea prejudiced the defendant and affected the “fairness of the process as a whole” … . People v Guzman, 2017 NY Slip Op 04291, 2nd Dept 5-31-17

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/VACATE CONVICTION, MOTION TO DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)

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NOTICE OF APPEARANCE FILED BY AN ATTORNEY WAIVES ANY DEFENSE BASED UPON LACK OF PERSONAL JURISDICTION, DEFENSE OF LACK OF STANDING IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN RAISED BY SUPREME COURT SUA SPONTE.

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss based upon a lack of personal jurisdiction in this foreclosure action should have been denied. Defendant had appeared by an attorney (notice of appearance) and thereby waived any “lack of personal jurisdiction” argument. The Second Department further noted that Supreme Court should not have raised the defendant’s lack of standing sua sponte:

… [T]he defendant waived any claim that the Supreme Court lacked jurisdiction over her. Pursuant to CPLR 320(a), “[t]he defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer.” Subject to certain exceptions not applicable here (see CPLR 320[c]), “an appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under [CPLR 3211(a)(8)] is asserted by motion or in the answer as provided in [CPLR 3211]” (CPLR 320[b]). “By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction” … . Here, the defendant’s attorney appeared in the action on her behalf by filing a notice of appearance  … , and neither the defendant nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading … . Accordingly, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action … . To the extent that prior decisions of this Court could be interpreted to require a different result … , they should no longer be followed. American Home Mtge. Servicing, Inc. v Arklis, 2017 NY Slip Op 04242, 2nd Dept 5-31-17

CIVIL PROCEDURE (NOTICE OF APPEARANCE FILED BY AN ATTORNEY WAIVES ANY DEFENSE BASED UPON LACK OF PERSONAL JURISDICTION)/JURISDICTION (CIVIL PROCEDURE, NOTICE OF APPEARANCE FILED BY AN ATTORNEY WAIVES ANY DEFENSE BASED UPON LACK OF PERSONAL JURISDICTION)/FORECLOSURE (STANDING, SUPREME COURT SHOULD NOT HAVE RAISED THE DEFENSE OF LACK OF STANDING SUA SPONTE)

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PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

The Second Department determined Supreme Court properly granted the petition for pre-action disclosure of the identity of the person or persons who widely distributed an intimate photo of a portion of a high school student’s (the potential plaintiff’s) body and identified the student depicted in the photo. The purpose of the disclosure was to identify potential defendants. The facts were sufficient to support an action for intentional infliction of emotional distress:

“Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order” (CPLR 3102[c]…). “[D]isclosure to aid in bringing an action’ (CPLR 3102 [c]) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants”… .. However, pre-action disclosure “may not be used to determine whether the plaintiff has a cause of action” … . This limitation is “designed to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party” … . “Where, however, the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate” … .  Accordingly, “[a] petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action” … . * * *

Under New York law, a cause of action alleging intentional infliction of emotional distress “has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress”… . . In support of its argument that the petition failed to allege facts that would constitute a cognizable cause of action against the unidentified individual, the school contends that the petition failed to adequately allege extreme and outrageous conduct.

The element of outrageous conduct “serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine” … . ” Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'” … .  Indeed, “where severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for the intentional infliction of emotional distress” … . Here, assuming the truth of the facts alleged in the petition, the acts complained of could be found by a trier of fact to amount to extreme and outrageous conduct which cannot be tolerated in a civilized community … . Matter of Leff v Our Lady of Mercy Academy, 2017 NY Slip Op 04280, 2nd Dept 5-31-17

 

CIVIL PROCEDURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EDUCATION-SCHOOL LAW (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL TORTS (INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EVIDENCE (CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/OUTRAGEOUS CONDUCT (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PHOTOGRAPHS (INTIMATE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/DISCLOSURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PRE-ACTION DISCLOSURE (IDENTIFY DEFENDANTS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

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DEFENDANT DID NOT DEMONSTRATE AN ADEQUATE EXCUSE FOR FAILURE TO ANSWER THE COMPLAINT, CRITERIA EXPLAINED, MOTION FOR LEAVE TO FILE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to for leave to file a default judgment should have been granted and defendant’s cross-motion to compel the acceptance of a late answer should have been denied:

To defeat the plaintiffs’ facially adequate CPLR 3215 motion and be relieved of its default in answering the complaint, the defendant had to show either that it did not default, or that it had a reasonable excuse for its default and a potentially meritorious defense to the action … . In order to compel the plaintiffs to accept service of its untimely answer, the defendant also had to provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action (see CPLR 3012[d]… . “[S]uccessful opposition to a CPLR 3215 motion for leave to enter a default judgment requires the same showing as an affirmative motion for leave to extend the time to answer” … .

The Supreme Court improvidently exercised its discretion in granting the defendant’s cross motion to compel the acceptance of its late answer, as the defendant did not offer a reasonable excuse for its failure to serve a timely answer in this action. The defendant, through an affidavit of its paralegal manager in its Massachusetts office, acknowledged that it received the complaint as of November 3, 2015, but blamed its failure to answer on a clerical error in its Mitchel Field, New York, office, which resulted in the complaint never being assigned to a claims handler. The affidavit of the defendant’s paralegal manager failed to provide any details surrounding the bare claim that a clerical error, which purportedly occurred in an office in which she did not work, caused the failure of the defendant to timely answer … . Moreover, the paralegal manager did not address why the defendant did not take any action upon being served with the plaintiffs’ initial motion for leave to enter a default judgment against it or the resulting court order …. .

Since the defendant failed to provide a reasonable excuse for its failure to timely serve an answer, it is unnecessary to consider whether it demonstrated the existence of a potentially meritorious defense … . Clarke v Liberty Mut. Fire Ins. Co., 2017 NY Slip Op 04250, 2nd Dept 5-31-17

CIVIL PROCEDURE (DEFAULT JUDGMENT, DEFENDANT DID NOT DEMONSTRATE AN ADEQUATE EXCUSE FOR FAILURE TO ANSWER THE COMPLAINT, CRITERIA EXPLAINED, MOTION FOR LEAVE TO FILE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED)/DEFAULT JUDGMENT (CIVIL PROCEDURE, DEFENDANT DID NOT DEMONSTRATE AN ADEQUATE EXCUSE FOR FAILURE TO ANSWER THE COMPLAINT, CRITERIA EXPLAINED, MOTION FOR LEAVE TO FILE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED)

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