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MEDICAL RECORDS DEMONSTRATED THE NEGLIGENT FAILURE TO DIAGNOSE A SEVERED NERVE; THEREFORE THE MEDICAL FACILITY WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; THE PETITION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to file a late notice of claim in this medical malpractice action should have been granted. The medical facilities’ (NHCC’S) failure to diagnose a severed nerve was apparent from the medical records. Therefore NHCC had timely notice of the nature of the claim:

Medical records can establish actual knowledge of the essential facts constituting a claim where they “evince that the medical staff, by its acts or omissions, inflicted an[ ] injury on plaintiff” … . “While expert opinion may be helpful to this showing, it is not required where ‘the basic facts underlying the malpractice claims [can] be gleaned from the . . . medical records'” … . Here, NHCC acquired actual knowledge of the essential facts constituting the petitioners’ claim, since its employees participated in the acts or omissions giving rise to the claim and prepared medical records from which it could be readily inferred that NHCC negligently failed to timely diagnose and treat the injured petitioner’s nerve injury … .

Further, under the circumstances of this case, the petitioners demonstrated a reasonable excuse for the delay in serving a notice of claim based upon, inter alia, the injured petitioner not learning of the nerve injury until his surgery on March 11, 2021, followed by his recovery time from the surgery and inability to consult with an attorney until after he was fully vaccinated for COVID-19 due to preexisting health conditions … .

Moreover, the petitioners presented a “plausible argument” that NHCC could conduct an adequate investigation of the claim despite the delay, and thus, NHCC would not be substantially prejudiced by the late notice of claim … . Matter of Cleary v Nassau Health Care Corp., 2023 NY Slip Op 02121, Second Dept 4-26-23

Practice Point: Here the medical records were deemed to have provided the medical facility with timely knowledge of the negligent failure to diagnose a severed nerve. Therefore the petition for leave to file and serve a late notice of claim should have been granted.

 

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​THE ARBITRATOR’S AWARD OF EXCESSIVE ATTORNEY’S FEES WAS IRRATIONAL AND WARRANTED VACATION OF THE ENTIRE ARBITRATION AWARD (SECOND DEPT),

The Second Department, reversing Supreme Court, determined the attorney’s fee awarded by the arbitrator was excessive and warranted vacation of the entire arbitration award:

… [T]he arbitrator’s excessive award of attorneys’ fees in the sum of $11,307 was irrational because it was not supported by any proof. The arbitrator issued an award in the petitioner’s favor upon a finding that Surgery Center defaulted in answering the demand for arbitration. After awarding the petitioner damages in the principal sum of $22,614.89, plus interest, the arbitrator proceeded to award attorneys’ fees in the sum of $11,307, which is equal to 50% of the damages award. On the issue of attorneys’ fees, the petitioner submitted only the service agreements, which contained identical provisions stating that “[i]f [the petitioner] prevails in any litigation or arbitration between the parties, [Surgery Center] shall pay [the petitioner’s] legal fees,” and a letter of engagement between the petitioner and its counsel, which stated that the petitioner’s “collection matters will be handled on a contingency basis of one third of all amounts recovered or whatever legal fees are awarded, whichever is greater.” The petitioner’s counsel did not submit, and the arbitrator did not consider, any evidence as to the hours of legal work by the petitioner’s counsel or the hourly rate. Although the arbitrator stated that he was awarding the sum of $11,307 in attorneys’ fees “as provided for in the agreement between the parties,” there was no proof that Surgery Center agreed to unlimited or unreasonable fees, and no proof that Surgery Center agreed to the fee arrangement that the petitioner made with its counsel. Moreover, the award of attorneys’ fees was contrary to the petitioner’s agreement with its counsel. As such, the arbitrator’s award of attorneys’ fees was irrational … .

Further, the arbitrator’s award of attorneys’ fees violates the strong public policy against excessive fees, e.g., fee arrangements “where the amount becomes large enough to be out of all proportion to the value of the professional services rendered” … .

Under the circumstances present here, where the award of attorneys’ fees was clearly irrational and contrary to public policy, vacatur of the entire arbitration award is warranted … . Matter of Briscoe Protective, LLC v North Fork Surgery Ctr., LLC, 2023 NY Slip Op 02120, Second Dept 4-26-23

Practice Point: Here there was no support in the record for the attorney’s fee award, which was deemed excessive. Therefore the attorney’s fee award was irrational and warranted vacation of the entire arbitration award.

 

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ALTHOUGH DEFENDANT DID NOT SIGN THE NOTE, HE WAS A TITLE-HOLDER AND WAS LISTED AS A BORROWER ON THE MORTGAGE; THEREFORE DEFENDANT WAS ENTITLED TO THE NOTICE OF FORECLOSURE IN ACCORDANCE WITH RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Kalenborn was entitled to the RPAL 1304 notice of foreclosure even though he did not sign the note. Kalenborn held title to the property and was listed as a “borrower” on the mortgage:

… [D]efendants established that the plaintiff failed to serve Douglas Kalenborn with notice pursuant to RPAPL 1304, and, contrary to the plaintiff’s contention, Douglas Kalenborn was entitled to such notice as a “borrower” within the meaning of that statute. Although Douglas Kalenborn did not sign the note, the plaintiff conceded that both of the defendants were title owners of the subject property and both executed the mortgage as a “borrower.” “Where, as here, a homeowner defendant is referred to as a ‘borrower’ in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a ‘borrower’ for the purposes of RPAPL 1304, notwithstanding . . . any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured” … . Since Douglas Kalenborn “signed the mortgage as a ‘borrower’ and, in that capacity, agreed to pay the amounts due under the note, [he] was entitled to notice pursuant to RPAPL 1304” … . HSBC Bank USA, N.A. v Kalenborn, 2023 NY Slip Op 02109, Second Dept 4-26-23

Practice Point: Here defendant did not sign he note but he was a title-holder and was listed as a borrower on the mortgage. Therefore defendant was entitled to notice of the foreclosure which met the requirements of RPAPL 1304.

 

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​ PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE NOTICE OF FORECLOSURE WAS MAILED TO DEFENDANT IN ACCORDANCE WITH THE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not demonstrate the notice of foreclosure was mailed to defendant in accordance with the requirements of RPAPL 1304:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304 … . The plaintiff did not submit proof of actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures. Further, the plaintiff failed to present sufficient proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, including “how the mail was transmitted to the postal service” … . Freedom Mtge. Corp. v King, 2023 NY Slip Op 02105, Second Dept 4-26-23

Practice Point: The plaintiff in this foreclosure action did not prove how the notice of foreclosure was transmitted to the postal service. Therefore compliance with the requirements of RPAPL 1304 was not proven and plaintiff’s motion for summary judgment should not have been granted.

 

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HERE THE LEASE MADE THE OUT-OF-POSSESSION LANDLORD RESPONSIBLE FOR STRUCTURAL REPAIRS AND MADE THE THE TENANT RESPONSIBLE FOR ALL NON-STRUCTURAL REPAIRS; THE CRACKED STEP WAS NOT A STRUCTURAL DEFECT; THE FACT THAT THE LANDLORD WAS AWARE OF THE DEFECT WAS IRRELEVANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case should have been granted. The court noted that if, due to the provisions of the lease, an out-of-possession landlord is not responsible for the repair of a defect, the fact that the landlord had notice of the defect is irrelevant:

“An out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it ‘(1) is contractually obligated to make repairs or maintain the premises or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision'” … .Here, defendant established that it was an out of possession landlord with no contractual obligation to make repairs or maintain the restaurant premises. Pursuant to Paragraph 4 of the lease agreement, all non-structural repairs to the premises were to be made by the tenant restaurant at its sole cost and expense. Moreover, the cracked step at issue was not a significant structural or design defect that is contrary to a specific statutory safety provision … .

In response, plaintiff failed to raise a triable issue of fact sufficient to defeat defendant’s motion. Plaintiff’s assertion that there is an issue of fact as to whether defendant had actual notice of the cracked step on which plaintiff fell is without merit. An out of possession landlord may not be held liable even if it had notice of the defective condition prior to the accident … . Padilla v Holrod Assoc. LLC, 2023 NY Slip Op 02082, First Dept 4-25-23

Practice Point: By the terms of the lease, the out-of-possession landlord was only responsible for structural repairs. The cracked step in this slip and fall case was not a structural defect. The fact that the landlord was aware of the defect was irrelevant.

 

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THE TRANSFER OF REAL PROPERTY TO DECEDENT’S CHILDREN WAS A VALID EXERCISE OF THE POWER OF ATTORNEY; THE TRANSFER WAS COMPENSATION FOR CARE, NOT A GIFT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER THE TRANSFER WAS A GIFT AND THE POWER OF ATTORNEY DID NOT AUTHORIZE GIFTS (CT APP). ​

The Court of Appeals, over a dissent, determined that the transfer of real property to decedent’s children as compensation for the care given decedent was allowed under the operative power of attorney. The power of attorney did not include the power to make gifts. The dissent argued there was a question of fact whether the property transfer was a gift. Matter of Maika, 2023 NY Slip Op 02092, CtApp 4-25-23

Practice Point: The question here was whether the transfer of decedent’s property to his children was compensation for care, which was authorized by the power of attorney, or, as argued by the dissent, a gift, which was not authorized by the power of attorney.

 

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THE PLAINTIFF, AFTER ASSIGNING HIS RIGHTS TO A STRUCTURED SETTLEMENT IN RETURN FOR LUMP SUM PAYMENTS, COULD NOT SUE THE INSURER PAYING THE SETTLEMENT ANNUITY FOR FAILING TO OBJECT TO THE ASSIGNMENT, WHICH WAS PROHIBITED BY THE SETTLEMENT AGREEMENT; PLAINTIFF UNSUCCESSFULLY ARGUED THE INSURER’S FAILURE TO OBJECT TO HIS ASSIGNMENT OF THE SETTLEMENT PAYMENTS CONSTITUTED A BREACH OF AN IMPLIED COVENANT OF GOOD FAITH (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissent, determined that the plaintiff, Cordera, who had received a settlement award for lead poisoning, could not sue the insurer for failing to stop him from “selling” the rights to his 30-years-of-monthly-settlement-payments worth about $950,000 for about $270,000. The transactions were approved by a Florida court. Plaintiff unsuccessfully argued the defendant insurer’s failure to enforce the non-assignment provision of the settlement agreement (which prohibited the assignment of the settlement proceeds) was a breach of an implied covenant of good faith:

The United States Court of Appeals for the Eleventh Circuit certified to this Court a question requiring us to consider whether a plaintiff sufficiently pleads a cause of action for breach of the implied covenant of good faith and fair dealing under New York law by alleging that, during a Structured Settlement Protection Act proceeding, defendants (i.e., the structured settlement obligor and the issuer of an annuity funding the settlement) failed to enforce the anti-assignment provisions contained in structured settlement and qualified assignment agreements. Based on our reformulation of the question, we conclude that such allegations do not state a cognizable cause of action for breach of the implied covenant. * * *

Cordero claims that the anti-assignment provisions provide that reasonable expectation because they can be read to require issuers and obligors to protect plaintiffs from their own actions by objecting to their attempts to make further assignments. This theory is, of course, dependent on the view that the anti-assignment provisions in structured settlement and qualified assignment agreements are, at least in part, for a plaintiff’s benefit. Even assuming that is true, however, a reasonable person in the position of such a plaintiff would not be justified in believing, at the time the agreements were made, that the anti-assignment provisions required the issuer and obligor to object to any attempt the plaintiff made to execute prohibited assignments as part of [a] proceeding in which the court is charged with determining whether the transfer is “in the best interest of the payee” … . Cordero v Transamerica Annuity Serv. Corp., 2023 NY Slip Op 02091, CtApp 4-25-23

Practice Point: The insurer paying out settlement proceeds to an injury plaintiff is not obligated to object to the injured parties assignment of the settlement payments in return for a lump sump, even though the settlement agreement prohibits such an assignment. Here the plaintiff unsuccessfully argued the insurer’s failure to object was a breach of an implied covenant of good faith.

 

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​ IN A DISPUTE INVOLVING THE TELECAST RIGHTS FOR TWO MAJOR LEAGUE BASEBALL TEAMS, THE ARBITRATOR EXCEEDED ITS POWERS, WHICH WERE SPELLED OUT IN THE SETTLEMENT AGREEMENT, BY IMPOSING A MONEY JUDGMENT; THE ARBITRATOR’S RULING WAS AFFIRMED BUT THE MONEY JUDGMENT WAS VACATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Justice Singas, determined that the settlement agreement controlled the limits of the arbitrator’s powers in this dispute between two major league baseball team and their co-owned sports network about the value of telecast rights. Pursuant to the settlement agreement the arbitrator had the power to decide the fees associated with the telecast rights, but did not have the power to impose a money judgment:

New York’s well-established rules of contract law, which apply to arbitration agreements, provide that courts will enforce a commercial contract between sophisticated and counseled parties according to the contract’s terms. In this case, two Major League Baseball (MLB) teams and their co-owned regional sports network are in a dispute regarding the fair market value of certain telecast rights. By affirming the confirmation of the second arbitration award and directing that the money judgment be vacated, we hold the highly sophisticated parties to the terms of their agreement. * * *

Although the courts below correctly confirmed the second arbitration award, the order appealed from must be modified because Supreme Court erred by awarding the Nationals prejudgment interest and rendering a money judgment in the Nationals’ favor. The settlement agreement grants the RSDC [the arbitrator] the power only to determine “the fair market value” of the telecast rights fees. The parties did not agree that the RSDC could resolve disputes over nonpayment of such fees. Instead, remedies for … nonpayment of those fees are governed by a different provision of the settlement agreement, which sets forth certain requirements, including a cure period. Only after that cure period expires do the Nationals “have a right to seek money damages.” Further, disputes over nonpayment of the fees appear to be governed by the settlement agreement’s more general dispute resolution provisions. Matter of TCR Sports Broadcasting Holding, LLP v WN Partner, LLC, 2023 NY Slip Op 02090, CtApp 4-25-23

Practice Point: Sophisticated parties (here major league baseball teams and a regional sports network) must be held to the terms of the underlying commercial contract. The arbitrator exceeded its powers by imposing a money judgment after deciding the fee dispute. The settlement agreement did not empower the arbitrator to impose the money judgment.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; THE JUDGMENT REQUIRING DEFENDANT TO REGISTER AS A SEX OFFENDER VACATED (THIRD DEPT).

The Third Department determined burglary as a sexually motivated felony is not a registrable offense under SORA:

… [W]e agree with defendant, as well as the People’s concession, that burglary in the second degree as a sexually motivated felony is not a registerable offense under SORA because it is not expressly identified as a “[s]ex offense” pursuant to Correction Law § 168-a (2) (a) … .

… [T]he judgment is modified, on the law, by vacating the provisions thereof certifying defendant as a sex offender pursuant to the Sex Offender Registration Act and requiring him to register as a sex offender and pay the related sex offender registration fee … . People v Vakhoula, 2023 NY Slip Op 02034, Third Dept 4-20-23

Practice Point: Burglary as a sexually motivated felony is not a registrable offense under SORA. Conviction does not require registration as a sex offender.

 

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THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, over a dissent. denied the petition to reinstate the original sentence in the prosecution of the owner of a limousine service. The brakes failed on one of petitioner’s limousines and the driver, 17 passengers and two pedestrians were killed. Petitioner pled guilty to 20 counts of criminally negligent homicide and was sentenced to two years of interim probation, community service, followed by a period of probation. When it was discovered that the two-year interim probation was illegal, petitioner appeared before a different judge for resentencing, the respondent in this proceeding. The respondent refused to abide by the plea agreement and informed the petitioner he would impose a prison sentence. Petitioner withdrew his plea and the case was set down for trial. Petitioner then brought this Article 78 petition seeking a writ of mandamus, a writ of prohibition and specific performance of the plea agreement. In a complex ruling too detailed to fairly summarize here, the relief was denied. The dissenter argued petitioner was entitled to specific performance of the plea agreement:

Mandamus to compel is an extraordinary remedy, commanding “an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary” … . * * *

“… [I]mposing a criminal sentence is never ministerial” … . * * *

… [A] review of the merits leads us to conclude that the issuance of a writ [of prohibition] is unwarranted … . A “defendant [is not] entitled to specific performance of [a] plea bargain unless he [or she has] been placed in a ‘no-return position’ in reliance on the plea agreement” … . Matter of Hussain v Lynch, 2023 NY Slip Op 02049, Third Dept 4-20-23

Practice Point: This opinion should be consulted for the criteria for a writ of mandamus versus a writ of prohibition in the context of requiring a judge to abide by a plea agreement.

 

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