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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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IN THIS FORECLOSURE ACTION, PLAINTIFF’S AFFIANT DID NOT HAVE FIRST-HAND KNOWLEDGE OF THE MAILING PRACTICES OF THE PARTY RESPONSIBLE FOR MAILING THE RPAPL 1304 NOTICE OF FORECLOSURE TO THE DEFENDANT; JUDGMENT OF FORECLOSURE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not prove the 90-day notice of foreclosure required by RPAPL 1304 was mailed to the defendant, a failure of proof which has been the ground for hundreds of reversals spanning many years:

… [P]laintiff proffered the affidavit of Trey Cook, a document execution specialist employed by the plaintiff’s loan servicer, Nationstar Mortgage, LLC (hereinafter Nationstar), which was insufficient to establish compliance with RPAPL 1304. While Cook averred that he had personal knowledge of Nationstar’s business records and further averred that according to the business records he reviewed, 90-day notices were served via certified and first class mail at the mortgaged premises and last known address of the borrower, he did not attest that he was familiar with the standard office mailing procedures of Walz Group, Inc. (hereinafter Walz), the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of the plaintiff. Thus, Cook’s affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, Cook’s affidavit failed to address the nature of Nationstar’s relationship with Walz and whether Walz’s records were incorporated into Nationstar’s own records or routinely relied upon in its business … . Thus, Cook’s affidavit failed to lay a foundation for the admission of a transaction report generated by Walz (see CPLR 4518 [a] …). Finally, the tracking numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Palomaria, 2024 NY Slip Op 04374, Second Dept 9-11-24

Practice Point: In yet another reversal on this ground, plaintiff in this foreclosure action did not produce an affiant with first-hand knowledge of the mailing practices of the party responsible for mailing the RPAPL 1304 ninety-day notice of foreclosure to the defendant. Therefore the judgment of foreclosure was reversed.

 

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DEFENDANTS OFFERED A REASONABLE EXCUSE FOR DEFAULT IN THIS EVICTION ACTION, INCLUDING THE COVID-19-RELATED DELAYS; THE COVID-19 EMERGENCY RENTAL ASSISTANCE PROGRAM (CERAP) APPLIES TO EVICTION PROCEEDINGS IN SUPREME COURT, AS WELL AS HOLDOVER PROCEEDINGS IN CIVIL COURT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion to vacate the default judgment in this eviction action should have been granted. In addition, the Second Department held the COVID-19 Emergency Rental Assistance Program (CERAP) applied to eviction actions in Supreme Court (not just to holdover proceedings in Civil Court) and remitted the matter for consideration of the merits of defendants’ motion for a stay pursuant to CERAP:

“A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer . . . must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense” … . “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … . Under the circumstances of this case, including the lack of prejudice to the plaintiff, the minor delay when accounting for the COVID-19-related stays, the plaintiff’s failure to disclose the related holdover proceeding, and the strong public policy of resolving cases on the merits, the defendants’ proffered excuse was reasonable … . In addition, the defendants demonstrated a potentially meritorious defense to the action. ZG Palmetto, LLC v Alongi, 2024 NY Slip Op 04419, Second Dept 9-11-24

Practice Point: In this eviction action, the COVID-19-related delays, the lack of prejudice to plaintiff, plaintiff’s failure to disclose the related holdover proceeding, and the potentially meritorious defense warranted vacation of the default judgment.

Practice Point: The COVID-19 Emergency Rental Assistance Program (CERAP) applies to eviction actions in Supreme Court, not just to holdover proceedings in Civil Court.

 

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DEFENDANT IN THIS SLIP AND FALL CASE PROVED THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS INSPECTED (AT MOST) AN HOUR AND TEN MINUTES BEFORE THE FALL; THAT PROOF WAS SUFFICIENT TO AWARD DEFENDANT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case proved it did not have actual or constructive notice of the food on the floor where plaintiff slipped and fell. Defendant’s motion for summary judgment should have been granted:

… [T]he defendant established, prima facie, that it did not create or have actual or constructive notice of the condition alleged by the plaintiff to have caused the accident. In support of its motion, the defendant submitted, inter alia, the deposition testimony of its employee, as well as the “Daily Floor-walk / Safety Inspection” record for the day of the incident, which demonstrated that the area in question was last inspected between 2:47 p.m. and 3:40 p.m. on the date of the accident and that no hazardous condition was found in that location … . The employee testified that if he had observed any hazardous condition on the floor, he would have immediately cleaned it … . In opposition, the plaintiff failed to raise a triable issue of fact. Arbit v Costco Wholesale Corp., 2024 NY Slip Op 04366, Second Dept 9-11-24

Practice Point: This is a rare decision which gives some insight into how a defendant can prove a lack of constructive notice of a dangerous condition, here food on the floor, which is alleged to have caused a slip and fall. Defendant produced a “Daily Floor-walk/Safety Inspection” record and employee testimony showing the area was inspected, at most, an hour and ten minutes before the alleged slip and fall.

 

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IN THIS FORECLOSURE ACTION, PLAINTIFF’S COUNSEL’S AFFIDAVIT, WHICH WAS BASED SOLELY UPON READING THE COMPLAINT, DID NOT DEMONSTRATE DEFENDANT’S DEFAULT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined the affidavit by plaintiff’s counsel in this foreclosure action did not demonstrate defendant’s default:

Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default … . “A plaintiff may establish a payment default by an admission made in response to a notice to admit (see CPLR 3212[b]; 3123), by an affidavit from ‘a person having [personal] knowledge of the facts’ (CPLR 3212[b]), or by other evidence ‘in admissible form'” … .

Here, in support of its motion, the plaintiff submitted the affirmation of its counsel, Jennie Shnayder, who attested to the borrower’s default in payment. However, Shnayder stated that the basis of her knowledge was her review of the complaint, and she did not attest that she had personal knowledge of the defendants’ alleged default in payment or annex to her affirmation any other evidence thereof in admissible form. Wilmington Sav. Fund Socy., FSB v E39 St., LLC, 2024 NY Slip Op 04417, Second Dept 9-11-24

Practice Point: A recurring evidentiary issue in foreclosure proceedings where the bank is seeking summary judgment is the sufficiency of evidence presented in the supporting affidavits. Unless the plaintiff’s affiant’s assertions are based on first-hand knowledge, or on business records that are attached, summary judgment is not supported.

 

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EVIDENCE THAT PLAINTIFF DID NOT HAVE STANDING TO FORECLOSE, SUBMITTED AFTER A JURY TRIAL AND JUDGMENT FOR THE PLAINTIFF, WARRANTED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined defendant’s evidence that plaintiff did not have standing to foreclose, submitted after a jury trial and a judgment of foreclosure, raised a question of fact requiring a new trial:

The defendant cross-moved … pursuant to CPLR 4404(b) … for judgment … dismissing the complaint insofar as asserted against him, submitting evidence that Fannie Mae purchased the note subsequent to the assignment of the note to the plaintiff and prior to the commencement of this action. …

“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” … . …

The evidence submitted by the defendant raised issues of fact warranting a new trial on the issue of standing, and the plaintiff does not contend that it was improper for the defendant to submit this evidence for the first time after the conclusion of the original trial … . Wendover Fin. Servs. Corp. v Steinman, 2024 NY Slip Op 04416, Second Dept 9-11-24

Practice Point: Here evidence submitted by defendant, after a jury trial and judgment for the plaintiff, raised a question of fact about whether plaintiff had standing to foreclose requiring a new trial. Plaintiff did not object to the post-trial submission.

 

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A DEFENDANT WHO HAS WAIVED INDICTMENT CANNOT PLEAD GUILTY TO A SUPERIOR COURT INFORMATION (SCI) WHICH INCLUDES AN OFFENSE GREATER THAN ANY CHARGED IN THE CORRESPONDING FELONY COMPLAINT (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), over a dissent, determined an SCI cannot include an offense greater than any offense charged in the felony complaint. Here the SCI “charged [defendant] with a higher level offense than any contained in the felony complaint, that is, robbery in the third degree is a class D felony, whereas grand larceny in the fourth degree, the highest offense charged in the felony complaint is an class E felony:”

Neither the Court of Appeals nor this Court has directly addressed the issue now before us: whether an SCI that charges an offense for which a defendant was held for action of a grand jury can also, under CPL 195.20 and consistent with New York Constitution article I, § 6, charge a joinable offense of a higher grade or degree than any contained in the felony complaint. * * *

… [T]he New York Constitution article I, § 6 permits prosecution pursuant to an SCI only for “an offense” for which a defendant has been “held for the action of a grand jury”. Such an “offense” includes “the lesser included offenses as well as a greater offense charged in the felony complaint” … , but does not include a greater offense, not charged in the felony complaint, which has additional aggravating elements … . Permitting inclusion in an SCI of an offense of a higher grade than any charged in the felony complaint “would permit circumvention of” the “constitutional imperative” of prosecution by indictment … . People v Perkins, 2024 NY Slip Op 04361, First Dept 9-5-24

Practice Point: Here, a defendant, who waived indictment, pled to a superior court information (SCI) which included an offense greater than any in the corresponding felony complaint. The inclusion in the SCI of an offense greater than any for which the defendant was held for indictment violates the NYS Constitution.

 

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THE RELATION-BACK DOCTRINE APPLIES EVEN WHERE A NEW ACTION HAS BEEN COMMENCED AND CONSOLIDATED WITH A PRIOR ACTION (FIRST DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rosado, determined the relation-back doctrine applied to the wrongful death action against Dr. Ozcan and reinstated that cause of action. The court noted that the relation-back doctrine applies where, as here, a new action has been commenced and consolidated with a prior action:

Dr. Ozcan does not substantively dispute that the claims in the prior and instant actions arose out of the same conduct or that she is united in interest with Montefiore [Medical Center]. Therefore, the only question to be decided, is whether the third prong of the relation-back doctrine has been established.

Dr. Ozcan, who was named as a defendant in the First Action, should have known that, but for a mistake, the wrongful death claim would have been brought against her as well … .

Application of the relation-back doctrine is proper even where, as here, a new action has been commenced and consolidated with a prior action … . Picchioni v Sabur, 2024 NY Slip Op 04362, First Dept 9–5-24

Practice Point: The relation-back doctrine applies to render an action timely brought even where a new action has been commenced and consolidated with a prior action.

 

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ROBERT F KENNEDY, JR’S NOMINATING PETITION DECLARED INVALID (THIRD DEPT).

The Third Department determined that the nominating petition for presidential candidate Robert F. Kennedy, Jr. of the We the People Party was properly declared invalid because the New York residency requirement was not met. The address Kennedy listed as his New York residence was a friend’s home where Kennedy stayed one night:

… [B]oth Kennedy and the friend testified that Kennedy spent only one night at the Katonah home, in June 2024, approximately one month after his nominating petition was filed and two weeks after petitioners commenced this proceeding. Matter of Cartwright v Kennedy, 2024 NY Slip Op 04354, Third Dept 8-29-24

Practice Point: Here 2024 presidential candidate Robert F. Kennedy, Jr’s. nominating petition was declared invalid because the New York residency requirement was not met.

 

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