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PETITIONER SHOULD NOT HAVE BEEN GRANTED LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE COUNTY IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner in this slip and fall case should not have been allowed file a late notice of claim. The fact that county personnel responded to the scene of her injuries did not demonstrate the county had timely knowledge of the potential lawsuit. The late notice was served 50 days after the expiration of the 90 time-limit and therefore did not provide notice within a reasonable time. The petitioner’s injuries did not constitute an adequate excuse. And the petitioner did not provide any evidence the county would not be prejudiced by the late notice:

… [T]he fact that members of the Nassau County Police Department and a County ambulance responded to the scene and tended to her injuries, without more, cannot be considered actual knowledge of the essential facts constituting the claim against the County … . The petitioner failed to present any evidence to demonstrate that the County had knowledge of the circumstances of the accident from which it could “readily infer” that a “potentially actionable wrong had been committed” by it … .  Moreover, the late notice of claim, served upon the County without leave of court 50 days after the 90-day statutory period had expired, was served too late to provide the County with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period expired … .

The petitioner also failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim. The petitioner’s conclusory assertion that her injuries prevented her from making timely service, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse … .

… [T]he petitioner failed to come forward with “some evidence or plausible argument” that the County will not be substantially prejudiced in maintaining a defense on the merits as a result of the delay in commencing this proceeding and the lack of timely, actual knowledge of the essential facts constituting the claim … . Matter of Lang v County of Nassau, 2022 NY Slip Op 06245, Second Dept 11-9-22

Practice Point: In this slip and fall case: (1) the fact that county personnel responded to the scene when petitioner slipped and fall did not demonstrate the county had timely knowledge of the potential lawsuit; (2) the late notice served 50 days after the 90-day time-limit did not provide notice within a reasonable time; (3) the petitioner’s injuries did not constitute an excuse; and (4) the petitioner did not present evidence the county would not be prejudiced by the delay.

 

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FAILURE TO INCLUDE ALL THE INFORMATION REQUIRED BY LIEN LAW 201 IN THE NOTICE OF SALE DID NOT WARRANT CANCELLATION OF THE LIENS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the deficiencies in the notice of sale did not warrant cancellation of the liens:

Pursuant to Lien Law § 201-a, within 10 days after service of a notice of sale, the owner or any person entitled to notice may commence a special proceeding to determine the validity of a lien. Here, while service upon the petitioners of the notices of sale was in accordance with the proprietary lease and the cooperative by-laws, the notices of sale did not contain a statement setting forth “[t]he nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due,” as required under Lien Law § 201. Nevertheless, the deficiencies in the notices of sale did not provide a basis for cancellation of the liens … . Matter of Ger v Saxony Towers Realty Corp., 2022 NY Slip Op 06243, Second Dept 11-9-22

Practice Point: Lien law 201 requires the notice sale to state “[t]he nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due.” The failure to include that information, however, does not warrant cancellation of the lien.

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​ IN THIS FORECLOSURE ACTION, THE BANK FAILED TO PROVE DEFENDANT’S DEFAULT (EVIDENCE SUBMITTED IN REPLY NOT CONSIDERED) AND THE BANK FAILED TO DEMONSTRATE IT NOTIFIED A TENANT OF THE FORECLOSURE AS REQUIRED BY RPAPL 1303 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank (Merrill Lynch) in this foreclosure action failed to prove defendant’s default and failed to notify a tenant on the property of the foreclosure. The bank’s attempt to prove the default in reply papers was rejected:

Merrill Lynch failed to submit admissible evidence establishing the defendant’s default. In support of its motion, Merrill Lynch submitted, inter alia, the affidavit of Theresia Ang, the vice president of its loan servicer and attorney-in-fact. However, Ang failed to attach the business records on which she relied, and thus, her averment to the defendant’s default was hearsay lacking in probative value … . Although Merrill Lynch attempted to submit evidence of the defendant’s default in reply, a moving party “cannot meet its prima facie burden by submitting evidence for the first time in reply” … .

… RPAPL 1303 requires, inter alia, the party foreclosing a mortgage on residential property to provide the notice prescribed by the statute to any tenant of the property by certified mail, if the identity of the tenant is known to the foreclosing party (see id. § 1303[1][b]; [4]). Proper service of an RPAPL 1303 notice is a condition precedent to commencing a foreclosure action, and the “‘foreclosing party has the burden of showing compliance therewith'” … .

Here, Merrill Lynch failed to submit any evidence that it served any tenant of the subject property with the notices required by RPAPL 1303 by certified mail, or that it was not aware of any tenant’s identity. In contrast, the defendant’s affidavit and the affidavit of Richard Nicholson, submitted in opposition to Merrill Lynch’s motion, established that Richard Nicholson resided at the subject property, that he paid rent, and that the mortgage loan servicer was aware that he resided at the subject property. Merrill Lynch Credit Corp. v Nicholson, 2022 NY Slip Op 06239, Second Dept 11-9-22

Practice Point: The bank in this foreclosure action failed to submit sufficient evidence of defendant’s default and was not allowed to cure the defect in reply papers.

Practice Point: The bank in this foreclosure action did not demonstrate it notified a tenant of the foreclosure as required by RPAPL 1303.

 

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REPEATED FAILURES TO COMPLY WITH DISCOVERY ORDERS WITH NO EXCUSE WARRANTED STRIKING DEFENDANTS’ ANSWER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ failure to comply with discovery orders justified striking the answer:

Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the defendants’ answer. The defendants’ willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with the plaintiffs’ discovery demands and the court’s discovery orders without an adequate excuse … . L.K. v City of New York, 2022 NY Slip Op 06236, Second Dept 11-9-22

Practice Point: Here the defendants offered no excuse for their failure to comply with discovery orders and the appellate court struck their answer.

 

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THE BANK DID NOT DEMONSTRATE THE ALLONGE, A SEPARATE PAPER, WAS FIRMLY ATTACHED TO THE NOTE, AS REQUIRED BY THE UCC; THEREFORE THE BANK DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure action:

… [T]he plaintiff failed to establish, prima facie, that it had standing to commence the action based on its annexation of the note to the summons and complaint, since the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . Hudson City Sav. Bank v Ellia, 2022 NY Slip Op 06235, Second Dept 11-9-22

Practice Point: When a defendant contests the bank’s standing to bring a foreclosure action, the bank must prove the allonge (a separate paper) was “firmly attached” to the note as required by UCC 3-202(2).

 

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THE BANK INCLUDED OTHER NOTICES WITH THE NOTICE OF DEFAULT, A VIOLATION OF THE SEPARATE ENVELOPE RULE (RPAPL 1304) (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank included other notice with the notice of default, a violation of RPAPL 1304 (the separate envelope rule):

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action” … . Here, the defendants established, prima facie, that the plaintiff did not comply with RPAPL 1304, since additional notices were sent in the same envelope as the 90-day notice required by RPAPL 1304, and a single notice was jointly addressed to both of the defendants … . HSBC Bank USA, N.A. v Schneps, 2022 NY Slip Op 06234, Second Dept 11-9-22

Practice Point: The separate envelope rule (RPAPL 1304) which requires that nothing else be included with the notice of default is a condition precedent to a foreclosure action.

 

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ALTHOUGH THE FAILURE TO FILE PROOF OF SERVICE IS NOT A JURISDICTIONAL DEFECT AND CAN BE CURED SUA SPONTE, HERE THE PLAINTIFFS DID NOT PROPERLY SEEK LEAVE TO EXCUSE THE FAILURE AND THE JUDGE DID NOT GRANT PLAINTIFFS LEAVE TO FILE A LATE PROOF OF SERVICE; THE SERVICE WHICH WAS ALLOWED TO STAND BY THE JUDGE WAS THEREFORE A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not granted plaintiffs leave to file late proof of service on defendant Joffe. Plaintiffs offered no excuse for the failure:

Supreme Court granted that branch of the plaintiffs’ motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. The court did not acknowledge or address Joffe’s argument that the plaintiffs’ proof of service had not been filed with the court within the requisite time. The court recognized, but did not reach the merits of, that branch of the plaintiffs’ motion which was, in the alternative, pursuant to CPLR 306-b to extend the time to serve Joffe by 120 additional days. The court, in effect, denied the alternative branch of the plaintiffs’ motion on the ground that it was academic.

… CPLR 308(2) provides that “proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later.”

… [T]he failure to file timely proof of service does not constitute a jurisdictional defect … . Rather, “[t]he failure to file proof of service is a procedural irregularity . . . that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004” … .

Here, since the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service, and the Supreme Court did not grant them leave to file proof of service beyond the statutory window (see CPLR 308[2]), the proof of service relating to Joffe was a nullity … . Under the circumstances, the court should have denied that branch of the plaintiffs’ motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. Chunyin Li v Joffe, 2022 NY Slip Op 06227, Second Dept 11-9-22

Practice Point: The failure to file proof of service is not a jurisdictional defect and can be cured by the judge sua sponte. Here however the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service and the judge did not grant plaintiffs leave to file late proof of service, rendering the service on the defendant (allowed to stand by the judge) a nullity.

 

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ALTHOUGH DEFENDANT PORT AUTHORITY OF NEW YORK AND NEW JERSEY (PANYNJ) WAS THE LESSOR OF THE PROPERTY WHERE PLAINTIFF WAS INJURED IN THIS LABOR LAW 241(6) ACTION, IT WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND, THEREFORE, WAS A PROPER DEFENDANT; ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, SHE WAS IN AN AREA USED TO CREATE MATERIALS FOR THE CONSTRUCTION SITE, WHICH IS COVERED BY THE LABOR LAW (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined Port Authority of New York and New Jersey (PANYNJ), although the lessor of the property where plaintiff was injured in this Labor Law 241 (1) action, was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Although plaintiff was not injured at the construction site, she was injured where materials were being prepared for use in the construction:

PANYNJ failed to establish its entitlement to summary judgment, as the record presents issues of fact as to whether PANYNJ was liable to plaintiff under Labor Law § 241(6). Although PANYNJ leased control of the property to RHCT and transferred responsibility for the maintenance of the terminal to RHCT, PANYNJ was nevertheless the owner of property for purposes of Labor Law § 241(6). The operating agreement between PANYNJ and RHCT permitted RHCT to use the property, and set out conditions on RHCT’s use of the property. The agreement also set forth the scope and manner of the work to be performed and provided that RHCT was required to provide PANYNJ with a monthly profit and loss report. The general manager for PANYNJ testified that RHCT was required to obtain PANYNJ’s consent to sublicense any portion of the property. Additionally, under the purchase order between Tutor Perini and TBTA, the owner of the bridge project, PANYNJ was to be paid a port security charge, among other charges.

As a result, the evidence created a sufficient nexus between PANYNJ and the project, and thus between PANYNJ and plaintiff, to support an imposition of liability under Labor Law § 241(6) … . Plaintiff’s task of grinding bevels on the deck panels to be installed on the bridge also falls under the Labor Law because the protections of the statute extend to areas where materials or equipment are being prepared to be used in construction … .Musse v Triborough Bridge & Tunnel Auth., 2022 NY Slip Op 06171, First Dept 11-3-22

Practice Point: Although defendant was a lessor of the property where plaintiff was injured in this Labor Law 241(6) action, it was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Even though plaintiff was not injured at the construction site, the Labor Law applies because she was injured in an area used to prepare materials for the construction site.

 

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THE LESSEE OF THE PROPERTY, INFOR, CONTRACTED FOR THE WORK BEING DONE AT THE TIME OF PLAINTIFF’S INJURY IN THIS LABOR LAW 240(1) ACTION; THEREFORE INFOR WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND WAS A PROPER DEFENDANT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the lessee of the property (Infor) was a proper party in this Labor Law 240(1) action because it had contracted for the work done at the time of plaintiff’s injury:

Plaintiff claims he was drilling metal tracks onto a wall when the Baker scaffold on which he was standing overturned, causing him to fall and sustain injuries. 635 owned the building in which plaintiff was working, and defendant SL Green Realty Corp. (SL Green) was 635’s managing agent. Infor leased the premises from 635, and retained JRM as the general contractor to perform construction work. JRM, in turn, retained Montec and nonparty Premier Builders, Inc., plaintiff’s employer, as subcontractors to perform various aspects of the work. * * *

The Labor Law § 240(1) claim should be reinstated against Infor, as the court incorrectly concluded that Infor was not a proper Labor Law defendant. Although Infor leased the premises from 635, it may still be held liable as an “owner” under the statute because it contracted for the construction work being performed at the time of plaintiff’s accident … . For the same reasons that plaintiff is entitled to partial summary judgment against 635 and JMR, plaintiff’s motion for partial summary on the Labor Law § 240(1) claim against Infor should be granted, and Infor’s motion for summary judgment dismissing the claim against it should be denied. Otero v 635 Owner LLC, 2022 NY Slip Op 06172, First Dept 11-3-22

Practice Point: A lessee may be considered a property “owner” in a Labor Law 240(1) action when the lessee contracted for the work being done when the plaintiff was injured.

 

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THE ORDER DENYING A MOTION TO VACATE OR MODIFY A PRIOR ORDER DID NOT MEET THE CRITERIA FOR AN ORDER “APPEALABLE AS OF RIGHT” AND THEREFORE WAS NOT CONSIDERED BY THE APPELLATE DIVISION; THE CRITERIA FOR AN “ORDER APPEALABLE AS OF RIGHT” WERE EXPLAINED (FIRST DEPT)

The First Department noted that the order refusing to vacate or modify a prior order was not appealable:

… [T]his Court lacks jurisdiction to consider the portion of defendants’ appeal from the denial of the motion to vacate. Pursuant to CPLR 5701(a)(3), a party may appeal to this Court as of right from an order refusing to vacate or modify a prior order, but only where the prior order “would have been appealable as of right” pursuant to CPLR 5701(a)(2) if it had been the result of a motion on notice. Here, the Extension Denial Order would not have been appealable as of right if it had been the result of a motion made on notice. The Extension Denial Order was not a substantive ruling, rather it denied defendants’ request for an extension of its time to post a bond. The order did not “involve[] some part of the merits” of the case (CPLR 5701[a][2][iv]) or “affect[] a substantial right” (CPLR 5701[a][2][v]) of the parties, or otherwise fit within CPLR 5701(a)(2) such that it would be appealable as of right. Largo 613 Baltic St. Partners LLC v Stern, 2022 NY Slip Op 06168, First Dept 11-3-22

Practice Point: An order denying a motion to vacate or modify a prior order must meet the criteria for “an order appealable as of right” to be considered on appeal. Here the denial of the motion to vacate the prior order was not a substantive ruling (it asked for an exension of time to post a bond) and therefore did not meet the “appealable as of right” criteria.

 

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