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Failure to Provide Addresses of Witnesses and the Nature of Their Testimony Justified the Denial of Defendants’ Motion to Change Venue

The Second Department determined defendants failed to meet their burden (imposed by CPLR 510 (3)) in support of their motion for a change of venue.  Although the defendants alleged the inconvenience of witnesses, they failed to provide the addresses of those witnesses and failed to described the nature of the witnesses’ testimony. “CPLR 510(3) provides that the court may, upon motion, change the place of the trial of an action where ‘the convenience of material witnesses and the ends of justice will be promoted by the change’ (CPLR 510[3]). The party seeking the change, which is discretionary in nature, must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which those witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses will be inconvenienced if the venue of the action is not changed … . ” Fitzsimons v Brennan, 2015 NY Slip Op 03801, 2nd Dept 5-6-15

 

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Once an Amended Complaint is Served the Action Must Proceed As if the Original Complaint Never Existed—A Summary Judgment Motion Based Upon an Affirmative Defense Asserted for the First Time in the Answer to the Amended Complaint Was Properly Brought, Even Though a Prior Summary Judgment Motion on the Same Ground Had Been Denied/Medical Billing Software, i.e., Intellectual Property, Is “Personal Property” Covered by General Obligations Law 5-903—The Automatic Renewal Provision of the Medical Billing Contract Was Therefore Void

The First Department, in a full-fledged opinion by Justice Gische, determined that an amended complaint supersedes the original complaint and an affirmative defense asserted in the answer to the amended complaint could be the basis of a summary judgment motion, even though the same ground was asserted in a prior, unsuccessful summary judgment motion. The substantive issue was whether billing software licensed to a doctor was “service … to or for … personal property” within the meaning of General Obligations Law 5-903 (2).  The court determined the billing software was covered by the General Obligations Law and, therefore, the automatic renewal provision in the contract between the software company and the doctor could not be enforced.  The “General Obligations Law” affirmative defense was not asserted in the original answer and a summary judgment motion based on the unpled affirmative defense had previously been denied:

We find that the second summary judgment motion, brought after the pleadings were amended on a substantive issue not previously decided by the court, was procedurally proper. “Once plaintiff served the amended complaint, the original complaint was superseded, and the amended complaint became the only complaint in the action. The action was then required to proceed as though the original pleading had never been served” … . Thus, defendant’s appeal from the prior order denying summary judgment became moot …, and “sufficient cause . . . exist[ed]” for his motion for summary judgment dismissing the amended complaint … . …

General Obligations Law § 5-903 does not define “personal property,” although it broadly defines “person” as “an individual, firm, company, partnership or corporation” and also states that its restrictions apply unless “the person receiving the service” is served with advanced notice calling its attention to the renewal clause in the contract (General Obligations Law § 5-903[2]). The statute does not require that the person own the “personal property” being serviced, and section 5-903 has been analyzed by courts in a variety of circumstances to determine its applicability. Personal property has been interpreted to include intellectual property as well as tangible personal property … . The purpose of the notice provision is to protect service recipients from the harm of unintended automatic renewals of contracts for consecutive periods … . Since § 5-903 is remedial in nature it is construed broadly … .

We find that the parties’ agreement was “for service . . . to or for . . . personal property” within the meaning of the General Obligations Law. The services provided were directly and inextricably related to the billing and medical records of the practice, which are personal property. Healthcare IQ LLC v Tsai Chung Chao, 2014 NY Slip Op 03216, 1st Dept 5-6-14

 

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In Consolidated Actions Started in Different Counties, the County Where the First Action Was Brought is the Proper Venue

The Second Department determined the proper venue for consolidated actions started in different counties is the county where the first action was brought: ” ‘[W]here actions commenced in different counties have been consolidated pursuant to CPLR 602, the venue should be placed in the county where the first action was commenced, unless special circumstances are present which decision is also addressed to the sound discretion of the court’…” . Fitzsimons v Brennan, 2015 NY Slip Op 03802, 2nd Dept 5-6-15

 

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State’s Decrease in Its Contribution to Judges’ Health Care Insurance Violated the Compensation Clause of the NYS Constitution

The First Department determined that the state’s decrease in its contribution to the cost of judges’ health care insurance violated the Compensation Clause of the NYS Constitution.  The reduced contribution increased the amounts withheld from judges’ salaries and thereby constituted an unconstitutional decrease in compensation. Bransten v State of New York, 2014 NY Slip Op 03214, 1st Dept 5-6-14

 

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Claimant’s Motion to File a Late Notice of Claim Properly Denied—Application of Statutory Factors Explained

The Second Department determined claimant’s motion for leave to file a late notice of claim was properly denied. Claimant had other remedies available and the claims were deemed to be without merit. The statutory factors (Court of Claims Act 10(6)) to be weighed are: “… whether the delay in filing was excusable; whether the State had notice of essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the State is prejudiced; and whether the claimant has any other available remedy … . ‘No one factor is deemed controlling, nor is the presence or absence of any one factor determinative’…”. Borawski v State of New York, 2015 NY Slip Op 03795, 2nd Dept 5-6-15

 

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Police Officer’s Draping Defendant’s Striped Shirt Over Defendant’s Chest During a Show-Up Identification Was Tantamount to Pointing Out the Defendant as the Perpetrator—Victim Had Told the Police the Perpetrator Was Wearing a Striped Shirt

The Second Department, over a dissent, determined the show-up identification procedure was unduly suggestive, requiring suppression of the identification testimony and a new trial. The defendant did not match the description of a person who had just robbed the victim at knife-point. However, the victim said the robber was wearing a brown and white striped shirt.  When a police officer spotted the defendant, he was shirtless but was carrying a red and white striped shirt. The victim was driven to where the defendant was being held, but she was only able to identify the defendant as the robber after an officer draped the striped shirt over his chest:

Here, the active police involvement in the identification process—the police officers’ draping of the shirt over the defendant’s chest immediately after the complainant had hesitated in identifying the shirtless defendant as the perpetrator and before she did identify him—renders this showup identification procedure unduly suggestive … . The actions taken by the police officers suggested to the complainant that the defendant was the perpetrator. Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him. This action by the police is akin to the police having pointed out the defendant as the perpetrator … . People v James, 2015 NY Slip Op 03864, 2nd Dept 5-6-15

 

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Divorce and Right to Equitable Distribution Did Not Abate Upon Husband’s Death

The Second Department determined the divorce action and the right to equitable distribution did not abate upon the husband’s death. The final adjudication of divorce had been made before the husband’s death and death did not abate a vested right to equitable distribution:

Contrary to the contention of the executor of the husband’s estate, the actions did not abate upon the death of the husband. The Supreme Court had made the final adjudication of divorce before the husband’s death, but had not performed the ” mere ministerial act of entering the final judgment'” … . Moreover, a cause of action for equitable distribution does not abate upon the death of a spouse … . ” Consequently, if a party dies in possession of a vested right to equitable distribution, and that right has been asserted during the party’s lifetime in an action in a court of this State, that right survives the party’s death and may be asserted by the estate'” … .  Charasz v Rozenblum, 2015 NY Slip Op 03798, 2nd Dept 5-6-15

 

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There Must Be a Determination of Paternity Before Making an Abandonment Finding

The Second Department, in a full-fledged opinion by Justice Dillon, determined Family Court should have granted appellant’s request for DNA testing before finding that appellant had abandoned the child (thereby freeing the child for adoption).  Appellant did not know whether he was the father of the child and there was no evidence of his paternity.  Appellant feared the abandonment finding would negatively affect his relationship with his four children. The Second Department held the abandonment finding could not be made unless appellant is the father, so whether appellant is the father must be determined first:

We are asked to address whether a Family Court may render a determination that a putative father has abandoned a child so as to free the child for adoption, if there is not first a threshold finding that the putative father is, in fact, the father of the child. For the reasons set forth below, we conclude that where paternity is not ascertained in fact or by law, the Family Court may not conclusorily find that a respondent is not a “consent father,” or that his consent, while otherwise required, has been forfeited by reason of his abandonment of the child. Matter of Heaven A. A. (Tyrone W.–Stephanie A.), 2015 NY Slip Op 03833, 2nd Dept 5-6-15

 

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Nothing in the Documentation Submitted to the Lender Raised Any Questions About the Applicant’s Authority, as the Sole Member, to Enter the Mortgage on Behalf of Defendant Limited Liability Company—Therefore the Affirmative Defense Alleging the Mortgage Was Invalid Because there Were Undisclosed Members of the Limited Liability Company Was Properly Dismissed

In an action to foreclose a mortgage, the Second Department determined the defendants’ affirmative defense claiming the mortgage was invalid was properly dismissed. The defendants alleged the member of defendant limited liability company who applied for the mortgage, Botticelli, did not have the authority to enter the mortgage on behalf of the limited liability company because he was not the sole member. However, there was nothing in the documents submitted to the lender by Botticelli which raised questions about the existence of undisclosed members. Therefore the mortgagee was not under any obligation to make inquiries to ensure Botticelli had the proper authority and the mortgagee was a bona fide encumbrancer:

The operating agreement of the defendant Jericho Plaza, LLC (hereinafter the LLC), which was formed to build and sell new homes, provided that Silvia Cerrone held a 50% interest, that her son-in-law Giuliano Botticelli held a 25% interest, and that his father, Anthony Botticelli, held a 25% interest in the LLC. The LLC obtained a $600,000 loan, secured by a mortgage on the only property it owned. At the closing, Giuliano Botticelli presented documents indicating that he was the sole member of the LLC, and was authorized to execute the mortgage on its behalf. Thereafter, the plaintiffs commenced this foreclosure action against the LLC and others. Silvia Cerrone successfully moved to intervene. The LLC and Silvia Cerrone (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them, contending that the mortgage was invalid by reason of Cerrone’s undisclosed interest in the LLC, and the plaintiffs cross-moved for summary judgment dismissing the defendants’ affirmative defenses which were based upon the alleged invalidity of the mortgage.

A mortgagee is not a bona fide encumbrancer where, despite being aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue, it fails to make such inquiries … . However, mortgagees “do not have a duty of care to ascertain the validity of the documentation presented by an individual who claims to have the authority to act on behalf of a borrower corporation or entity” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defenses which were based upon the alleged invalidity of the mortgage, by submitting evidence demonstrating that Giuliano Botticelli submitted documents at the closing which indicated that he was the sole member of the LLC, and had the authority to enter into the mortgage on its behalf. Moreover, the plaintiffs established, prima facie, that the circumstances presented would not lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue. 334 Corp. v Jericho Plaza, LLC,2015 NY Slip Op 03827, 2nd Dept 5-6-15

 

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Doctor Who Allegedly Wrongfully Prescribed Narcotics for a Drug Addict Who Shot Plaintiff’s Decedent in an Attempt to Steal Narcotics from a Pharmacy Did Not Owe a Duty of Care to Plaintiff’s Decedent

The Second Department determined the duty to protect persons from the criminal acts of others did not extend to plaintiff’s decedent.  Plaintiff sued a doctor who operated a pain management clinic, alleging that the doctor operated a “pill mill” and wrongfully provided drugs to a drug addict,  The drug addict shot plaintiff’s decedent during a robbery of a drug store in an attempt to steal narcotics. The court noted that there are situations in which a defendant exercises sufficient control to prevent harm to others. Here, however, in the absence of such control, the doctor owed no duty of care to plaintiff’s decedent:

“The question of whether a defendant owes a duty of care to another person is a question of law for the courts” … .

Generally, “[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm” … . Further, “there is no duty to control the conduct of third persons to prevent them from causing injury to others,’ even where, as a practical matter, the defendant could have exercised such control” … .

… Courts have imposed a duty of care “where there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons” that courts have identified a duty to exercise such control … . Thus, courts have imposed a duty to control the conduct of others “where there is a special relationship: a relationship between [the] defendant and [the] third person whose actions expose [the] plaintiff to harm such as would require [the] defendant to protect the plaintiff from the conduct of others” … .

The Supreme Court erred in denying [the doctor’s] motion to dismiss the complaint insofar as asserted against him for failure to state a cause of action. [The doctor] did not owe a duty to the decedent or to the general public because no special circumstances existed. The decedent was a stranger to [the shooter] and a member of the general public, not a member of “a determinate and identified class” … . Malone v County of Suffolk, 2015 NY Slip Op 03811, 2nd Dept 5-6-15

 

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