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THE DOCUMENTS RELIED UPON FOR THE REFEREE’S REPORT WERE LISTED BUT NOT SUBMITTED, RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed in this foreclosure action because, although the documents the referee relied on were listed, the documents were not submitted. Therefore the report was hearsay:

The Supreme Court erred in granting the plaintiff’s motion, inter alia, to confirm the referee’s report and for a judgment of foreclosure and sale. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “However, computations based on the review of unidentified and unproduced business records . . . constitute inadmissible hearsay and lack probative value” … . Ridgewood Sav. Bank v Kapoor, 2023 NY Slip Op 06396, Second Dept 12-13-23

Practice Point: In a foreclosure action the fact that the documents relied upon for the referee’s report were identified was not enough. Because the documents were not submitted, the report constituted inadmissible hearsay.

 

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DEFENDANT’S MOTION TO RENEW A MOTION FOR MORE TIME TO CONDUCT AN IME SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to renew should have been granted and defendant should have been granted more time to conduct an independent medical examination (IME) of plaintiff:

“A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court” … . A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” … and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought” … . …

The Supreme Court improvidently exercised its discretion in denying, without prejudice, that branch of the defendant’s motion which was for leave to renew. The defendant presented new facts and a reasonable justification for failing to present such facts on the prior motion, and demonstrated that the new evidence would have changed the prior determination … . Moreover, the papers submitted by the defendant in support of the motion, as supplemented by the papers submitted by the plaintiff, which expressly incorporated the plaintiff’s prior opposition, were sufficient to determine the motion …. Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 2023 NY Slip Op 06352, Second Dept 12-13-24

Practice Point: The motion to renew presented new facts and a reasonable justification for failing to present those facts in the prior motion. The motion should have been granted.

 

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​PLAINTIFF’S FIRST EMPLOYMENT DISCRIMINATION COMPLAINT WAS DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE NYS HUMAN RIGHTS LAW; PLAINTIFF’S SECOND COMPLAINT STATED A CAUSE OF ACTION UNDER THE SAME STATUTE; THE SECOND COMPLAINT WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for employment discrimination under the New York State Human Rights Law (NYSHRL). Plaintiff had filed a prior complaint which was properly dismissed for failure to state a cause of action. Plaintiff then filed the instant complaint under the same statute by on different grounds. The instant complaint was not precluded the the doctrine of res judicata:

… [T]his cause of action was not barred by the doctrine of res judicata. That doctrine “precludes a party from relitigating a claim that has been finally adjudicated on the merits” …  “Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint” … . The first cause of action alleged in the present complaint was distinct from that alleged in the prior action, the latter of which was based upon an alleged failure of the defendants, among others, to provide a reasonable accommodation in the form of certain medical leave, as well as retaliation for engaging in a protected activity. Thus, the dismissal of those causes of action under CPLR 3211(a)(7) did not bar the first cause of action asserted in the present complaint. Duchemin v Village of E. Hampton, 2023 NY Slip Op 06350, Second Dept 12-13-24

Practice Point: Here the first complaint alleging employment discrimination was dismissed for failure to state a cause of action. That is not considered a dismissal on the merits. Therefore the second employment-discrimination complaint, brought under the same body of law, was not precluded by the doctrine of res judicata.

 

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ALTHOUGH THE BACKHOE WHICH COLLIDED WITH PLAINTIFF’S VEHICLE HAD BEEN USED FOR ROADWORK THAT DAY, AT THE TIME OF THE ACCIDENT THE BACKHOE WAS BEING USED TO TRANSPORT GRAVEL TO THE WORK SITE; THE SECOND DEPARTMENT DETERMINED THE BACKHOE WAS NOT “ACTIVELY ENGAGED” IN ROADWORK AT THE TIME OF THE ACCIDENT AND, THEREFORE, THE HIGHER “RECKLESS DISREGARD” STANDARD FOR LIABILITY IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, reversing Supreme Court, determined the county employee who rear-ended the plaintiff’s vehicle with a backhoe was not engaged in road construction work within the meaning of the Vehicle and Traffic Law at the time of the accident and, therefore, was not subject to the higher “reckless disregard” standard for liability. Although the backhoe had been used to repair a road, at the time of the accident the backhoe was transporting gravel to the work site. The Second Department determined transporting gravel was did not meet the definition of being “actively engaged” in construction work:

… [W]e conclude that the defendant driver was not actually engaged in work on a highway at the time of the accident …, because the act of transporting gravel to a highway worksite does not itself constitute construction, repair, maintenance, or similar work on a highway … . When a vehicle travels on a highway to transport equipment or materials, the road itself is not being worked on; instead, the road is being used for its intended purpose of facilitating travel. Moreover, the mere transporting of materials or equipment is different in kind from acts that have been deemed to constitute work “on” a highway, such as clearing or cleaning the road or its shoulder … , or actively assessing the conditions of the road or searching for a reported hazard on the road … . …

​… [T]he defendants do not contend that the mere transporting of construction materials on a public road will in every instance constitute being actually engaged in work on a highway. Rather, in advancing their claim, the defendants contend that the defendant driver’s transport of materials fell within the scope of the statute because the defendant driver had been repairing a roadbed on the day of the collision and had not yet completed his work for the day. We disagree. The defendants’ position is inconsistent with the statute’s use of the phrase “actually engaged” (Vehicle and Traffic Law § 1103[b]), as reflected in the plain language of the statute and its interpretation by the courts. Qosaj v Village of Sleepy Hollow, 2023 NY Slip Op 06395, Second Dept 12-13-23

Practice Point: A road-construction vehicle involved in an accident will not be subject to the higher “reckless disregard” standard of liability unless the vehicle is “actively engaged” in roadwork at the time of the accident. Transporting gravel to the work site is not considered “active engagement.”

 

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THE NOTICE TO ADMIT SOUGHT CONCESSIONS THAT WENT TO THE ESSENCE OF THE CONTROVERSY AND THEREFORE WAS PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice to admit in this breach of contract action was palpably improper:

CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted … . However, the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of … . A notice to admit is not to be employed to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate fact … .

… [T]he notice to admit at issue sought concessions that go to the essence of the controversy … . Thus, the … defendants could not have reasonably believed that the admissions they sought were not in substantial dispute … , and the notice to admit was palpably improper … . Moreover, the information sought in the notice to admit may be obtained through discovery, including depositions … . American Bldrs. & Contrs. Supply Co., Inc. v Vinyl is Final, Inc., 2023 NY Slip Op 06346, Second Dept 12-13-24

Practice Point: A notice to admit which seeks concessions at the heart of the controversy is palpably improper and should be struck.

 

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PLAINTIFF ALLEGED ASSAULT AND BATTERY BY POLICE OFFICERS; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE ASSAULT AND BATTERY IS INTENTIONAL, NOT NEGLIGENT, CONDUCT; THE IMMUNITY AFFORDED POLICE OFFICERS RE: ASSAULT AND BATTERY EXTENDS ONLY TO “OBJECTIVELY REASONABLE” CONDUCT; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE POLICE CONDUCT WAS OBJECTIVELY REASONABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the county based upon the alleged assault and battery of plaintiff by police officers should have been dismissed. Assault and battery stem from intentional, not negligent, acts. The assault and battery allegations properly survived summary judgment, however:

… [T]he defendants established their prima facie entitlement to summary judgment dismissing the plaintiff’s cause of action alleging negligence by submitting, inter alia, a transcript of the plaintiff’s testimony at a General Municipal Law § 50-h hearing, in which she testified that a police officer grabbed her, picked her up, and threw her to the ground, causing her injuries. Where, as here, intentional offensive conduct has been established, the actor may be found liable for assault or battery, but not negligence … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether any of her alleged injuries were caused by unintentional conduct … . Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging negligence.

However, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging assault and battery. Police officers are entitled to qualified immunity on state law claims if their actions are “objectively reasonable” … . The determination of whether a use of force was objectively reasonable is an “intensely factual” question “best left for a jury to decide” … . Here, the defendants’ submissions failed to eliminate triable issues of fact as to whether the police officer’s actions were objectively reasonable under the circumstances. Pleva v County of Suffolk, 2023 NY Slip Op 06394, Second Dept 12-13-23

Practice Point: Allegations of intentional conduct, here assault and battery, will not support a negligence cause of action.

Practice Point: Police officers have immunity which will protect them from allegations of assault and battery, but only if the police conduct was “objectively reasonable” (a question of fact).

 

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THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS AWARE HE COULD BE DEPORTED BASED UPON HIS GUILTY PLEAS, A VIOLATION OF DUE PROCESS; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE THE GUILTY PLEAS (SECOND DEPT).

The Second Department, remitting the matter, determined defendant was not warned about the possibility of deportation based upon his guilty pleas. The matter was sent back to allow defendant to move to vacate the pleas:

The defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … .

… [W]e remit the matters to the Supreme Court … to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court warned him of the possibility of deportation … . In its report to this Court, the Supreme Court shall set forth whether the defendant moved to vacate his pleas of guilty and, if so, its determination as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Jean, 2023 NY Slip Op 06380, Second Dept 12-13-23

Practice Point: If the record does not demonstrate a defendant was aware of the deportation consequences of a guilty plea, the matter will be remitted to give the defendant the opportunity to move to vacate the plea. The issue need not be preserved for appeal.

 

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THE ORAL AGREEMENT BETWEEN PLAINTIFF AND HER MOTHER REQUIRING MOTHER TO TRANSFER FUNDS TO THE PLAINTIFF COULD HAVE BEEN COMPLETED WITHIN A YEAR AND THEREFORE DID NOT VIOLATE THE STATUTE OF FRAUDS; THE RELATED BREACH OF CONTRACT AND TORTIOUS INTERFERENCE WITH CONTRACT CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that an oral agreement to distribute funds to the plaintiff did not violate the statute of frauds because the agreement could have been fulfilled within a year. The related breach of contract and tortious interference with contract causes of action should not have been dismissed:

… [T]he statute of frauds concerns those agreements which, by their terms, “have absolutely no possibility in fact and law of full performance within one year” (… see General Obligations Law § 5-701[a][1] …). Here, although the portion of the alleged oral agreement that required the mother to make payments to the plaintiff in amounts equal to those payments the mother made to the plaintiff’s siblings was capable of an indefinite continuance, it could have been fully performed within a year of its making … . * * *

… [T]he complaint sufficiently sets forth a cause of action sounding in tortious interference with contract, alleging that the plaintiff sustained damages when Janice intentionally and improperly interfered with the portion of the alleged oral agreement requiring the mother to pay the plaintiff an amount equal to any amounts the mother paid to the plaintiff’s siblings, and aided the mother in her breach of that portion of the agreement … . Pare v Aalbue, 2023 NY Slip Op 06377, Second Dept 12-13-23

Practice Point: Even though a contract need not have been fulfilled within a year, it does not violate the statute of frauds if it could be fulfilled within a year.

 

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THE PATIENT IN A PSYCHIATRIC FACILITY DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HER RIGHT TO COUNSEL IN THIS PROCEEDING TO PROVIDE TREATMENT WITHOUT HER CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Susan K., a psychiatric patient, did not voluntarily waiver her right to counsel in this proceeding to provide treatment without her consent:

… [T]he petitioner commenced this proceeding for permission to administer electro-convulsive therapy and various proposed psychotropic drugs to Susan K., a patient at a psychiatric facility, without her consent. Following a hearing, at which the Supreme Court permitted Susan K. to proceed pro se, the court issued an order authorizing the petitioner to administer the proposed course of treatment over Susan K.’s objection. Susan K. appeals. * * *

Supreme Court did not discuss with Susan K. the dangers and disadvantages of proceeding pro se, did not apprise Susan K. “of the ‘importance of the lawyer in the adversarial system of adjudication,'” and did not elicit an acknowledgment that Susan K. understood the perils of self-representation … . Because the court failed to conduct a sufficiently searching inquiry of Susan K. to ensure that her waiver of the right to counsel was made knowingly, intelligently, and voluntarily, we must reverse the order and remit the matter to the Supreme Court … for a new hearing and a new determination after proper advisements and inquiry into Susan K.’s understanding of the consequences of self-representation. Matter of Susan K. (Hamilton), 2023 NY Slip Op 06369, Second Dept 12-13-23

Practice Point: Here a psychiatric patient represented herself in a proceeding seeking to provide treatment without her consent. The judge did not make sure the patient understood the dangers of self-representation. Matter remitted.

 

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IN THIS TRAFFIC ACCIDENT CASE, THE PASSENGER IN PLAINTIFF’S CAR EXECUTED A RELEASE IN FAVOR OF PLAINTIFF-DRIVER; DEFENDANT’S COUNTERCLAIM FOR CONTRIBUTION FROM PLAINTIFF FOR ANY INJURY SUFFERED BY THE PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release executed by the passenger (Jelissa) in favor of the plaintiff-driver (Nicole) required the dismissal of the defendant’s counterclaim seeking contribution for any injuries suffered by Jelissa:

Pursuant to General Obligations Law § 15-108(b), “[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.” Here, pursuant to General Obligations Law § 15-108(b), the release executed by Jelissa in favor of Nicole relieves Nicole from liability to the defendant for contribution … . Moraskin v Lati, 2023 NY Slip Op 06362, Second Dept 12-13-23

Practice Point: Here in this traffic accident case, the passenger in plaintiff’s car released plaintiff-driver from any liability. Therefore the defendant’s counterclaim against plaintiff for contribution for any injury to the passenger should have been dismissed.

 

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