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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED PURSUANT TO THE ADVOCATE-WITNESS RULE, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s (Gamez’s) counsel should not have been disqualified pursuant to the advocate-witness rule:

“[T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion” … . A party moving to disqualify counsel on the ground that he or she may be called as a witness must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party … . “Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” … . Here, Lopez [defendant] failed to demonstrate that any anticipated testimony by Gamez’s counsel would be necessary to Lopez’s case and that such testimony would be prejudicial to Gamez … . Gamez v Lopez, 2023 NY Slip Op 05250, Second Dept 10-18-23

Practice Point: The criteria for the disqualification of counsel pursuant to the advocate-witness rule were not met here. The testimony of the opposing party’s counsel must be necessary to the moving party’s case, and the testimony must be prejudicial to the opposing party.

 

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A NYC REGULATION REQUIRES FOR-HIRE VEHICLES TO BE WITHIN 12 INCHES OF THE CURB WHEN PICKING UP OR DISCHARGING PASSENGERS; THE DRIVER STOPPED TWO FEET FROM THE CURB AND PLAINTIFF FELL TRYING TO GET INTO THE VEHICLE; THE NEGLIGENCE ACTION AGAINST THE UBER DRIVER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence action against the driver and owner of an UBER vehicle should not have been dismissed. The driver stopped two feet from the curb and plaintiff tripped trying to get into the vehicle. A NYC regulation requires vehicles-for-hire to be within 12 inches of the curb:

“To hold a defendant liable in common-law negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) that the breach constituted a proximate cause of the injury” …   “Although the issue of proximate cause is generally one for the finder of fact, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” … .

“A common carrier owes a duty to a passenger to provide a reasonably safe place to board and disembark its vehicle” … . 34 RCNY 4-11(c) requires taxis and for-hire vehicles to be within 12 inches of the curb when picking up or discharging passengers. Porcasi v Oji, 2023 NY Slip Op 05281, Second Dept 10-18-23

Practice Point: Here the NYC regulation requiring for-hire vehicle to be within 12 inches of the curb when picking up a passenger created a duty on the part of the driver which was breached when the driver stopped two-feet from the curb. The defendant driver did not demonstrate the breach was not the proximate cause of plaintiff’s fall and did not demonstrate the driver’s action merely furnished a condition for the fall. Therefore there are questions of fact for the jury.

 

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PLAINTIFF BANK DID NOT START PROCEEDINGS TO ENTER A DEFAULT JUDGMENT WITHIN ONE YEAR AND DID NOT PRESENT AN ADEQUATE EXCUSE FOR THE DELAY; THE MOTION TO DISIMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not seek a default judgment within one year and did not offer a reasonable excuse for the delay. Therefore there was no need for the court to consider whether plaintiff had a meritorious cause of action. The complaint should have been dismissed:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” “The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” … . …

… [T]his matter was released from the settlement conference part in December 2011, and that the plaintiff failed to take steps to initiate proceedings for the entry of a default judgment by moving for leave to enter a default judgment and for an order of reference until March 2013, “which was too late for the plaintiff to ‘manifest an intent not to abandon the case'” … . … [Plaintiff] offered only vague, conclusory, and unsubstantiated assertions which were insufficient to excuse the plaintiff’s delay in moving for leave to enter a default judgment … .

Since [plaintiff] failed to proffer a reasonable excuse for the plaintiff’s delay, this Court need not consider whether the plaintiff had a potentially meritorious cause of action … . Citimortgage, Inc. v Kimmerling, 2023 NY Slip Op 05246, Second Dept 10-18-23

Practice Point: Pursuant to CPLR 3215(c). if the plaintiff does not start proceedings to enter a default judgment within a year and does not offer an adequate excuse for the delay, the complaint must be dismissed. There is no need for the court to consider whether plaintiff has a meritorious cause of action.

 

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IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE FAMILIARITY WITH THE APPLICABLE STANDARD OF CARE, WAS SPECULATIVE AND CONCLUSORY AND DID NOT ADDRESS ALL THE ASSERTIONS MADE BY DEFENDANTS’ EXPERTS; THE DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit from plaintiff’s expert did not demonstrate familiarity with the applicable standard of care, was speculative and conclusory, and did not address all the allegations raised by defendants’ experts:

… [T]he plaintiff failed to raise a triable issue of fact by submitting a redacted physician’s affidavit. “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” necessary to establish the reliability of his or her opinion …  Here, the redacted physician’s affidavit failed to lay the requisite foundation for the affiant’s familiarity with the applicable standard of nursing care … . Moreover, the opinions of the plaintiff’s expert that the defendants deviated from the applicable standard of care were speculative, conclusory, and nonresponsive to the specific assertions raised by the defendants’ experts … . Blank v Adiyody, 2023 NY Slip Op 05243, Second Dept 10-18-23

Practice Point: In a med mal action, in the context of a summary judgment motion, an expert’s affidavit must demonstrate familiarity with the applicable standard of care, must not be speculative or conclusory, and must address all the assertions made by the opposing party’s expert(s).

 

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EVEN THOUGH THE DEBTOR TRANSFERRED THE PROPERTY TO THE NON-DEBTOR CODEFENDANT YEARS BEFORE FILING FOR BANKRUPTCY, THE BANKRUPTCY TOLLED THE FORECLOSURE STATUTE OF LIMITATIONS FOR THE ACTION AGAINST THE DEBTOR; THE TOLL DID NOT APPLY TO THE ACTION AGAINST THE NON-DEBTOR WHICH NEVER FILED FOR BANKRUPTCY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing (modifying) Supreme Court, determined the foreclosure statute of limitations was tolled by the bankruptcy stay for the action against the defendant who filed for bankruptcy, but not for the defendant to which the property was transferred (who did not file for bankruptcy):

This appeal requires us to examine whether the stay provided by section 362 of the 1978 Bankruptcy Code (11 USC § 362[a]) operates as a “statutory prohibition” under CPLR 204(a) to toll the statute of limitations to commence a mortgage foreclosure action against a defendant debtor who no longer owns the property that is the subject of the mortgage foreclosure action. We hold that the bankruptcy stay pursuant to subsection 362(a)(1) (see 11 USC § 362[a][1]) tolls the statute of limitations for commencing a mortgage foreclosure action against the defendant debtor, regardless of whether that defendant owns the property at the time of the bankruptcy filing.

This appeal also requires us to determine whether the bankruptcy stay pursuant to subsection 362(a) applies to a nondebtor codefendant to which the defendant debtor transferred the property years before filing for bankruptcy. On the record before this Court, the plaintiff failed to meet its burden of raising a question of fact as to whether the bankruptcy stay applied to the nondebtor codefendant. Bank of N.Y. Mellon v DeMatteis, 2023 NY Slip Op 05242, Second Dept 10-18-23

Practice Point: Filing for bankruptcy tolls the foreclosure statute of limitations, even if the property had been transferred before the filing.

 

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THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability:

The purpose of prohibiting new theories of liability in notices of claim is to prevent prejudicing the city in its ability to timely investigate the claim and provide an adequate defense … . Contrary to defendants’ argument, to the extent the notice of claim alleges affirmative negligence, plaintiff did so in the first instance. Plaintiff’s original notice of claim alleged that his injuries were caused by New York City’s “negligent . . . design, maintenance, construction and installation . . .” of the “the traffic island/extra curb/bumper” in question. Plaintiff only adds that his injuries were related to the “design, installation, and maintenance” of the delineators and bollards which are specific elements of the traffic island. This addition only alleges specific facts related to the theories of liability contained in the original claim, unlike in cases cited by defendants … . Accordingly, we find that this amendment does not seek to assert a new theory of liability, and instead merely clarifies the facts alleged in the claim, as permitted by General Municipal Law § 50-e. Burnes v City of New York, 2023 NY Slip Op 05221, First Dept 10-17-23

Practice Point: The motion to amend the notice of claim merely fleshed out the theory of negligence in the original notice and did not present a new theory. Therefore the motion should have been granted.

 

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FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT). ​

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:

… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … . Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23

Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.

 

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DEFENDANT, IN THE PLEA COLLOQUY, SAID SHE ACTED IN SELF DEFENSE; AT THAT POINT THE JUDGE SHOULD HAVE MADE SURE SHE WAS AWARE SHE WAS WAIVING THE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the judge, based on the plea colloquy, should have questioned the defendant about her waiver of her right to present a justification defense:

The trial court failed to determine defendant’s understanding and waiver of her right to present a defense of justification after defendant stated, during the plea colloquy, “I had to defend myself” and “I wasn’t just the aggressor in the situation” (see People v Muniz-Cayetano, 186 AD3d 1169, 1171-1172 [1st Dept 2020] …). The People concede that the particulars of this case are indistinguishable from those of Muniz-Cayetano and that defendant’s guilty plea should be vacated. People v Williams, 2023 NY Slip Op 05195, First Dept 10-12-23

Practice Point: Here the defendant said she acted in self defense during the plea colloquy. At that point the judge should have made sure she knew about and was waiving the justification defense.

 

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THE PLEA ALLOCUTION DID NOT DEMONSTRATE DEFENDANT MADE AN INFORMED DECISION TO WAIVE A VIABLE INSANITY DEFENSE; THE FIRST DEPARTMENT VACATED THE PLEA AND DISMISSED THE INDICTMENT; DEFENDANT WAS RETURNED TO AN ASSISTED LIVING FACILITY UNDER A CIVIL GUARDIANSHIP ORDER (FIRST DEPT).

The First Department, vacating defendant’s plea and dismissing the indictment, determined defendant’s plea was invalid because it was not clear he made an informed decision to waive a viable insanity defense:

As the People concede, the circumstances of this unique case warrant vacating the plea and dismissing the indictment. The plea allocution did not address whether defendant was making an informed decision to waive a potentially viable insanity defense … , and the record as a whole casts significant doubt on defendant’s mental competence and ability to understand the proceedings or the terms of his plea … .

Under these circumstances, the appropriate remedy is dismissal rather than a remand for further proceedings. Among other things, this 68-year-old, severely mentally ill defendant lives in a secured unit of an assisted living facility under a civil guardianship order. People v Cosme, 2023 NY Slip Op 05207, First Dept 10-12-23

Practice Point: Here it was apparent defendant suffered from mental health issues. The plea was vacated and the indictment dismissed because the allocution did not make it clear that defendant had made an informed decisions to waive a viable insanity defense. Defendant was returned to an assisted living facility under a civil guardianship order.

 

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CASE REMITTED FOR A DETERMINATION OF THE CONSTITUTIONALITY OF THE GUARANTY LAW WHICH WAS FOUND TO HAVE BARRED PLAINTIFF’S CLAIM FOR CERTAIN AMOUNTS (FIRST DEPT).

The First Department sent this case back for a determination whether guarantees at issue are constitutional:

In view of the recent decision in Melendez v City of New York (2023 WL 2746183, 2023 US Dist LEXIS 57050 [SD NY, Mar. 31, 2023, No. 20-CV-5301 (RA)] finding the guaranty law unconstitutional, we remand the constitutional question raised by the parties here so the parties can further develop the record in the trial court for the purpose of applying the Contracts Clause test for constitutionality … . Plaintiff is directed to serve notice on nonparty City of New York under CPLR 1012(b)(2) and file proof of service in order for the City to “intervene in support of its constitutionality” … .

Given the vitality of the constitutional question, we also reverse the dismissal of plaintiff’s claim for those amounts the court determined were barred by the guaranty law for a determination following the court’s resolution of the constitutional issue. 45-47-49 Eighth Ave. LLC v Conti, 2023 NY Slip Op 05180, First Dept 10-12-23

Practice Point: Supreme Court had held plaintiff’s claim to certain amounts was barred by the guaranty law. A federal court has held the guaranty law unconstitutional. This matter was sent back for a determination of the constitutional question.

 

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