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FAILURE TO FILE PROOF OF SERVICE WITHIN TWENTY DAYS OF DELIVERY OR MAILING OF THE SUMMONS IS NOT A JURISDICTIONAL DEFECT WHICH DEPRIVES THE COURT OF JURISDICTION OVER THE SERVED PARTY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the failure to file proof of service within twenty days of delivery or mailing of the summons does not negate the validity of the service, i.e., the failure to file does not deprive the court of jurisdiction over the defendant:

“Where, as here, service was made pursuant to CPLR 308(2), ‘proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later,’ and ‘service shall be complete ten days after such filing'” … . “Nevertheless, [t]he [*2]purpose of requiring filing of proof of service, along with the 10-day grace period, pertains solely to the time within which a defendant must answer, and does not relate to the jurisdiction acquired by service of the summons” … . * * *

… [T]he defendants failed to rebut the presumption of proper service … which was established by the plaintiff’s process server’s affidavit … . Contrary to the defendants’ contention, the plaintiff’s “failure to timely file proof of service [wa]s a mere procedural irregularity, not a jurisdictional defect” … .Palma v Apatow, 2024 NY Slip Op 04465, Second Dept 9-18-24

Practice Point: Failure to file proof of service of the summons within twenty days does not invalidate the service.

 

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THE COVID-19 TOLLS AND THE COURT’S DELAY IN SIGNING THE ORDER TO SHOW CAUSE PROVIDED A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IN THIS BUS ACCIDENT CASE; THE POLICE REPORT TIMELY NOTIFIED THE CITY OF THE RELEVANT FACTS; THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to serve a late notice of claim in this bus accident case should have been granted. The COVID-19 tolls, and the court’s delay in signing the order to show cause, provided a reasonable excuse and the police report timely notified the city of the relevant facts:

In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether “(1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits” … .

Here the petitioner demonstrated a reasonable excuse for the delay, i.e., the COVID-19 pandemic, the tolls resulting therefrom, and the delay by the Supreme Court in signing the petitioner’s order to show cause.

Further, the petitioners met their burden of providing a plausible argument supporting a finding of no substantial prejudice. The happening of the accident and relevant facts were documented in a police report, and any prejudice was the result of delays resulting from the COVID-19 pandemic, not the petitioner’s conduct. Matter of Ortiz v New York City Tr. Auth., 2024 NY Slip Op 04464, Second Dept 9-18-24

Practice Point: The COVID-19 tolls and the judge’s delay in signing the order to show cause provided a reasonable excuse for failure to timely file a notice of claim in this bus accident case.

Practice Point: The police report provided the city with timely notice of the relevant facts. Therefore the city was not prejudiced by the late notice.

 

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HERE DEFENDANT’S FAILURE TO UPDATE HIS ADDRESS WITH THE DMV OR USPS WAS NOT “AFFIRMATIVE CONDUCT” DESIGNED TO AVOID SERVICE OF PROCESS; THEREFORE DEFENDANT SHOULD HAVE BEEN AFFORDED A HEARING ON WHETHER HE WAS PROPERLY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined the fact that defendant did not update his address with the Department of Motor Vehicles or the United States Postal Service did not demonstrate “affirmative conduct” designed to mislead a party into serving process at an incorrect address. Here the service was by “nail and mail” and defendant contended he no longer resided at that address. Defendant was entitled to a hearing:

“A defendant may be estopped from contesting the propriety of an address where service was attempted when the defendant has engaged in ‘affirmative conduct which misleads a party into serving process at an incorrect address'” … . However, as the Court of Appeals has recognized, “potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts” … . Thus, a defendant’s mere inaction—such as failing to update his or her address with the plaintiff, the Department of Motor Vehicles (hereinafter DMV), or the United States Postal Service (hereinafter USPS)—without more, may not be equated with affirmative or deliberate conduct designed to avoid service … . Here, the defendant’s failure to update his address with the plaintiff, DMV, or USPS, or to update his voting records with a new address, did not constitute “affirmative conduct” … , and such failure was insufficient to establish, without a hearing, that the defendant should be estopped from contesting service as a matter of law … . Citimortgage, Inc. v Goldstein, 2024 NY Slip Op 04453, Second Dept 9-18-24

Practice Point: Failure to update one’s address with the DMV or USPS is not affirmative conduct designed to avoid service of process, therefore defendant was not estopped from contesting service.

 

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THE PRE-ANSWER MOTION TO DISMISS CERTAIN CAUSES OF ACTION BASED UPON DOCUMENTARY EVIDENCE SHOULD HAVE BEEN GRANTED; THE CAUSES OF ACTION WERE PRECLUDED BY CONTRACT PROVISIONS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action should have been dismissed based upon documentary evidence, I.e., the purchase agreement and warranty. The plaintiff Board of Managers sued the sponsor and developer of defendant condominium alleging defective construction in common areas:

“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference” … . “‘A motion to dismiss a complaint pursuant to CPR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law'” … . “On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “[T]he criterion is whether the proponent of [a] pleading has a cause of action, not whether he [or she] has stated one” … .

… [T]he defendants submitted, among other things, a limited warranty that had been incorporated into the purchase agreements between the sponsor and unit owners, which expressly stated, “[t]he [s]ponsor’s [l]imited [w]arranty excludes all consequential, incidental, special damages and indirect damages.” This documentary evidence conclusively established a defense to so much of that cause of action as sought consequential damages as a matter of law … .

… [D]efendants’ motion … to dismiss the … causes of action, sounding in unjust enrichment, breach of implied housing merchant warranty, and negligence [should have been granted}. … [T]he defendants conclusively established that these causes of action are precluded by the purchase agreement and limited warranty … . Board of Mgrs. of the 37, 39 Madison St. Condominium v 31 Madison Dev., LLC, 2024 NY Slip Op 04451, Second Dept 9-18-24

Practice Point: Here the pre-answer motion to dismiss based on documentary evidence should have been granted. The relevant causes of action were precluded by the terms of a purchase agreement and warranty.

 

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TO BE ENTITLED TO A CHANGE OF VENUE AS OF RIGHT, THE DEMAND MUST BE SERVED WITH THE ANSWER OR BEFORE THE ANSWER IS SERVED; TO BE ENTITLED TO A DISCRETIONAY CHANGE OF VENUE, THE MOTION MUST BE MADE PROMPTLY AFTER LEARNING OF THE GROUND FOR THE CHANGE; HERE THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue should not have been granted. The summons indicated plaintiff’s residence was the basis of venue in Kings County.  Defendants did not serve a demand to change venue with their answer or before the answer was served. The motion to change venue was based upon plaintiff’s deposition testimony that he lived at an address in Richmond County. The defendants were not entitled to a change of venue as of right (because the demand was not served with the answer or before the answer was served), and the defendants were not entitled to a discretionary change of venue because the motion to change venue was not made promptly after plaintiff’s deposition testimony:

A demand to change venue based upon the designation of an improper county must be “served with the answer or before the answer is served” (CPLR 511[a]). Here, since no demand to change venue was served with the answer or before the answer had been served, that branch of the defendants’ motion which was to change venue on the ground that the county designated was improper (see CPLR 510[1]) was untimely (see CPLR 511[a] …). Thus, the defendants were not entitled to change venue as of right, and their motion became one addressed to the Supreme Court’s discretion … .

Contrary to the defendants’ contention, the Supreme Court improvidently exercised its discretion in granting that branch of their motion which was to change venue, since the defendants failed to demonstrate that they moved promptly for a change of venue after the plaintiff testified at his deposition that he lived at an address in Richmond County … . Aguilar v Reback, 2024 NY Slip Op 04444, Second Dept 9-18-24

Practice Point: For a change of venue as of right the demand must be served with the answer or before the answer is served.

Practice Point: For a discretionary change of venue, the motion must be made promptly after learning of the ground for the change.

 

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THE RECORD DID NOT DEMONSTRATE THE PARENTS COULD NOT COMMUNICATE ABOUT THE NEEDS OF THE CHILD AND THEREFORE DID NOT SUPPORT AWARDING SOLE CUSTODY TO FATHER; THE JUDGE SHOULD NOT HAVE LEFT IT UP TO THE PARTIES TO CRAFT A PARENTING-TIME SCHEDULE; A CHILD’S TESTIMONY IN A LINCOLN HEARING HAS NO INDEPENDENT EVIDENTIARY VALUE AND MUST BE KEPT CONFIDENTIAL (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the record did not support sole legal custody of the child by father, and the judge’s delegating the arrangement of parenting time for mother was improper. In addition, the Third Department noted that statements made by the child to the court in a Lincoln hearing must remain confidential:

… [T]he record is devoid of any indication that the parties are unable to effectively communicate to meet the child’s needs, or that joint legal custody has been otherwise rendered unfeasible or inappropriate … . As the record lacks support for granting the father sole legal custody, we must reverse that portion of the amended order … . …

… [P]arenting time with a noncustodial parent is presumed to be in a child’s best interests, and Family Court is required to craft a schedule that allows that parent frequent and regular access to the child, unless it finds that doing so would be inimical to the child’s welfare … . The court made no such finding here. Instead, Family Court improperly delegated the parenting time determination to the father, and this error requires reversal … .

… [W]e take this opportunity to remind Family Court that statements made by a child during a Lincoln hearing carry no independent evidentiary value …, and that such statements must remain confidential to protect children in custody proceedings “from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . … [I]nformation shared by a child during a Lincoln hearing may serve “to corroborate other evidence adduced at a fact-finding hearing or to ascertain a child’s thoughts and feelings regarding the crafting of a custodial arrangement, [but] such considerations must remain silent to ensure that the child’s right to confidentiality is protected” … . Matter of C.M. v Z.N., 2024 NY Slip Op 04427, Third Dept 9-12-24

Practice Point: Here the court noted there was no proof the parents could not communicate to meet the child’s needs and, therefore, the record did not support the award of sole custody to father.

Practice Point: A parenting-time schedule must be crafted by the judge and not left up to the agreement of the parties.

Practice Point: A child’s testimony in a Lincoln hearing has no independent evidentiary value and must not be revealed.

 

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DEFENDANT’S BEHAVIOR BEFORE AND DURING THE TRAFFIC STOP DID NOT CREATE “REASONABLE SUSPICION” THE DEFENDANT WAS ARMED; THE FRISK AND SEIZURE OF SMALL PACKETS OF PCP FROM DEFENDANT’S SOCK WAS NOT JUSTIFIED; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rodriguez, over a concurrence, reversing Supreme Court, determined the police, during a traffic stop, did not have “reasonable suspicion the suspect was armed” at the time defendant was frisked and small packets of PCP were seized from his sock, requiring suppression of the drugs. The concurrence argued that the evidence the officers smelled PCP provided “reasonable suspicion” sufficient to warrant a search, but, because Supreme Court did not credit that testimony, the appellate court could not consider it (the lower court’s ruling on that issue was not adverse to the defendant). The facts surrounding the traffic stop and frisk are too detailed to fully summarize here:

The issue presented is … “whether the circumstances in this case support a reasonable suspicion that defendant was armed and dangerous” … , thereby justifying the level three frisk. More precisely, the issue is whether Mr. Torres’s failure to produce his license and registration; his presentation as “nervous” and “fidgety”; the dark lighting under the Manhattan Bridge; the smell of PCP; and Officer McDevit’s observation that the van was shaking as he approached supports, in the totality, “a reasonable view that [defendant] was armed” … .

Ultimately, the circumstances here supported, at most, a level two intrusion to gain explanatory information but not an escalation to level three. Critically, Officer Galarza testified that when he asked Mr. Torres for his license and registration, Mr. Torres was “not able to produce [them].” It was “[a]t this point” that Officer Galarza had Mr. Torres “step out of the vehicle [] for [Officer Galarza’s] safety after [Officer Galarza] felt like [Mr. Torres] wasn’t compliant enough” with the request. * * *

… [A]lthough Mr. Torres’s failure to respond to Officer Galarza’s request for his license and registration “clearly served to heightened the suspicions of the officer” … and “represented a basis for further inquiry,” “it did not provide a predicate for reasonable suspicion to believe that [defendant] . . . [was] armed, thereby justifying a frisk” … . People v Torres, 2024 NY Slip Op 04442, First Dept 9-12-24

Practice Point: Here the defendant’s behavior before and during the traffic stop did not raise “reasonable suspicion” that he was armed. Therefore the frisk and seizure of drugs from his sock was not justified.

Practice Point: The concurrence argued the evidence that the officers smelled drugs (PCP) warranted a search. However, because the suppression court did not credit that evidence, the appellate court could not consider it.

 

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THE MALPRACTICE ACTION WAS AGAINST EMERGENCY-ROOM PHYSICIANS WHO TREATED PLAINTIFF’S DECEDENT’S GUNSHOT WOUNDS; PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE ANY FAMILIARITY WITH EMERGENCY MEDICINE AND THEREFORE DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment in this medical malpractice action should have been granted because the expert affidavit offered in opposition was deemed “conclusory” and insufficient to raise a question of fact. Plaintiff’s decedent died from three gunshot wounds. Plaintiff’s expert did not demonstrate any familiarity with the practice of emergency medicine:

“While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” … . “‘Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered'” … .

Here, the plaintiff submitted an affirmation of a physician who engaged in the private practice of internal medicine and cardiology. However, the affirmation did not indicate that the physician had training in emergency medicine or what, if anything, the physician did to become familiar with the standard of care for this specialty … . Furthermore, the affirmation was conclusory, speculative, and unsupported by the evidence … . Thus, the plaintiff failed to raise a triable issue of fact. Quinones v Winthrop Univ. Hosp., 2024 NY Slip Op 04406, Second Dept 9-11-24

Practice Point: Here plaintiff’s expert did not demonstrate any familiarity with emergency medicine. Plaintiff’s decedent died from gunshot wounds. Plaintiff’s expert’s affidavit was deemed “conclusory” and insufficient to raise a question of fact.

 

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HERE PLAINTIFF DID NOT IDENTIFY AN EXPERT WITNESS AS REQUIRED BY CPLR 3101 AND THE MEDICAL MALPRACTICE ACTION WAS PROPERLY DISMISSED; HOWEVER PLAINTIFF ALLEGED SCARRING AND BURNING DURING LASER HAIR REMOVAL AND MAY STILL BE ABLE TO PROVE ORDINARY NEGLIGENCE THROUGH THE TESTIMONY OF HIS TREATING PHYSICIAN AND OTHER EVIDENCE; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although plaintiff was precluded from offering expert evidence and therefore could not prove medical malpractice, the negligence cause of action should not have been dismissed. Plaintiff alleged scarring and burns caused by laser hair removal:

The Supreme Court erred in dismissing the negligence cause of action on the ground that the plaintiff could not establish a prima facie case in the absence of the testimony of an expert witness. At trial, the plaintiff may, through the testimony of his treating physician, records, or “other evidence,” be able to establish “the standard of care in performing laser hair removal and the known risks of the procedure” … . Therefore, contrary to the court’s determination, although the plaintiff is precluded from offering the testimony of an expert witness whose identity must be disclosed pursuant to CPLR 3101(d)(1)(i), at this juncture, it cannot be determined that the plaintiff will be unable to establish a prima facie case of negligence … . Mishli v Advanced Dermatology Laser & Cosmetic Surgery, P.C., 2024 NY Slip Op 04386, Second Dept 9-11-24

Practice Point: In this case alleging scarring and burning during laser hair removal, the dismissal of a medical malpractice cause of action because the identity of an expert witness has not been disclosed did not necessarily preclude a negligence cause of action proven by the testimony of plaintiff’s treating physician.

 

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DESPITE THE FACT THAT THE ADDRESS FOR DEFENDANT CORPORATION ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT, DEFENDANT WAS ENTITLED TO VACATE THE DEFAULT JUDGMENT ON THE GROUND DEFENDANT WAS NOT MADE AWARE OF THE ACTION IN TIME TO DEFEND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should have been granted. Defendant’s address on file with the Secretary of State was incorrect and defendant alleged it did not receive actual notice of the action in time to defend. There was no evidence the failure to update the address on file with the Secretary of State was intentional, and defendant demonstrated a potentially meritorious defense:

Pursuant to CPLR 317, a party that was not personally served may defend against an action if it demonstrates that it did not have notice of the action in time to defend and that it has a meritorious defense … . “Service upon a corporation through delivery of the summons and complaint to the Secretary of State is not ‘personal delivery’ to the corporation” … .

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect and, consequently, that it did not receive actual notice of the action in time to defend itself … . Further, “the evidence does not suggest that the defendant’s failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process” … , and there is some evidence in the record suggesting that the plaintiff had knowledge of the defendant’s actual business address … . Galatro v Lake Pointe Owners, Inc., 2024 NY Slip Op 04375, Second Dept 9-11-24

Practice Point: Here defendant corporation’s failure to update its address for service of process on file with the Secretary of State was deemed unintentional. The corporation’s motion to vacate the default judgment on the ground it was not aware of the action should have been granted.

 

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