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THE PARTIES HAD ALREADY STIPULATED TO RESTORE THE ACTION TO THE CALENDAR; THE JUDGE SHOULD HAVE GRANTED PLAINTIFF’S MOTION TO VACATE THE DISMISSAL OF THE ACTION FOR FAILURE TO APPEAR AT CONFERENCES OR OUTLINE REMAINING DISCOVERY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order dismissing the action based on plaintiff’s failure to appear at conferences or file a stipulation outlining discovery should have been granted. The parties had already stipulated to restore the action to the calendar and the court should have enforced the stipulation:

The motion court improvidently exercised its discretion when it denied plaintiff’s motion to vacate the order for failure to appear at conferences or to file a stipulation outlining the remaining discovery … . Defendants had already stipulated to restore the matter to the calendar, and stipulations between the parties are binding on the parties and generally enforced by the courts … . Moreover, the assertion by plaintiff’s counsel that two of the court’s notices were inadvertently routed to counsel’s spam folder constitutes an excusable law office failure … . Nor is there evidence in the record that counsel has engaged in a pattern of dilatory behavior … . Finally, plaintiff’s pleadings, along with the depositions of the witnesses, established a potentially meritorious cause of action … . Navarro v Joy Constr. Corp., 2022 NY Slip Op 05602, First Dept 10-6-22

Practice Point: Here excusable law office failure explained plaintiff’s failure to appear at conferences or outline remaining discovery. The parties had already stipulated to restore the action to the calendar. Plaintiff’s motion to vacate the dismissal of the action should have been granted. The parties’ stipulation should have been enforced, not ignored, by the judge.

 

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THE JUDGE DENIED DEFENDANT’S REQUEST FOR NEW COUNSEL WITHOUT INQUIRING ABOUT THE REASON FOR THE REQUEST; CONVICTION REVERSED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, determined the judge should have allowed the defendant to explain the reason he was requesting new counsel:

Defendant is entitled to a new trial because the court denied his request for new counsel without making any inquiry, and without giving defendant any opportunity to explain the basis for his request (see People v McCummings, 124 AD3d 502, 502-03 [1st Dept 2015]; People v Rodriguez, 46 AD3d 396 [1st Dept 2007], lv denied 10 NY3d 844 [2007]). People v Resheroop, 2022 NY Slip Op 05606, First Dept 10-6-22

Practice Point: Here the defendant asked for new counsel and the judge denied the request without asking for its basis. The appellate court reversed the conviction and ordered a new trial.

 

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IN THIS SLIP AND FALL CASE, THE DEFENDANTS DEMONSTRATED MEDICAL RECORDS PERTAINING TO PLAINTIFF’S PRIOR ANKLE INJURY WERE MATERIAL AND NECESSARY TO THE DEFENSE; DISCOVERY OF THOSE RECORDS SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants were entitled to discovery of the medical records for plaintiff’s prior injuries in this slip and fall case. Although the facts are not explained, the appellate court deemed he medical records relevant to whether plaintiff was negligent:

The plaintiff Shadia Hamed allegedly sustained personal injuries when she slipped and fell in a building owned and operated by the defendants. The plaintiff commenced this action alleging, inter alia, that the defendants negligently maintained their premises in an unsafe condition.

The defendants moved pursuant to CPLR 3124 to compel the plaintiff to provide certain discovery, including authorizations to obtain medical records related to the plaintiff’s treatment for pre-existing injuries to her right ankle. The defendants argued that these medical records were material and necessary to their defense of this action because these records were necessary to establish the plaintiff’s negligence. …

… Supreme Court improvidently exercised its discretion in only conditionally granting that branch of the defendants’ motion which was to compel the plaintiff to provide medical records pertaining to her pre-existing injury to her right ankle only in the event that the plaintiff ‘claims any effects on her gait or mobility as a result of this incident.’ The defendants established that these records are material and necessary to the defense of this action (see CPLR 3101[a][1]). Hamed v Alas Realty Corp., 2022 NY Slip Op 05518, Second Dept 10-5-22

Practice Point: In this slip and fall case, the medical records pertaining to plaintiff’s prior ankle injury were deemed material and necessary to the the defense, i.e., necessary to demonstrate plaintiff’s negligence. Therefore discovery of those records should not have been restricted.

 

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THE BANK DID NOT DEMONSTRATE THE NOTICE OF DEFAULT COMPLIED WITH THE REQUIREMENTS IN THE MORTGAGE AGREEMENT BECAUSE THE NOTICE OF DEFAULT WAS NOT ATTACHED TO THE PAPERS; THE JUDGE SHOULD NOT HAVE DENIED DEFENDANT’S CROSS MOTION FOR A HEARING ON WHETHER PLAINTIFF NEGOTIATED IN GOOD FAITH AS REQUIRED BY CPLR 3408 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff bank did not demonstrate compliance with the provision in the mortgage agreement requiring certain advisements in the notice of default. The affidavit purporting to demonstrate compliance did not have the notice of default attached. In addition, Supreme Court should not have denied defendant’s cross motion for a hearing on whether plaintiff bank met its obligation to negotiate in good faith (CPLR 3408):

… [T]he plaintiff failed to demonstrate, prima facie, that it complied with the provision in the mortgage agreement requiring the plaintiff to send to the defendant a notice of default containing certain advisements and setting forth a 30-day cure period. The affidavit of its employee, Lindsay Hodges, was insufficient for this purpose inasmuch as Hodges failed to attach business records upon which she relied—specifically, the notice of default itself—in averring that notice was provided in compliance with the mortgage agreement. … Hodges’s averment was therefore hearsay lacking in probative value … . …

Supreme Court improperly denied the defendant’s cross motion for a hearing to determine whether the plaintiff met its obligation to negotiate in good faith pursuant to CPLR 3408(f). “The purpose of the good-faith requirement in CPLR 3408 is to ensure that both the plaintiff and the defendant are prepared to participate in a meaningful effort at the settlement conference to reach a resolution” … . To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” … .

… [T]he defendant’s submissions in support of her cross motion raised a factual issue as to whether the plaintiff failed to negotiate in good faith and deprived her of a meaningful opportunity to resolve the action through loan modification or other potential workout options … . Citimortgage, Inc. v Rose, 2022 NY Slip Op 05516, Second Dept 10-5-22

Practice Point: Here the mortgage agreement required that the notice of default include certain information. The affidavit submitted to prove the contents of the notice of default was hearsay because the notice was not attached.

 

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CANCELLATION AND DISCHARGE OF A MORTGAGE AND VACATION OF A NOTICE OF PENDENCY MUST BE SOUGHT BY AN ACTION OR A COUNTERCLAIM PURSUANT TO RPAPL 1501, NOT, AS HERE, BY A CROSS-MOTION; THE ISSUE WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s cross-motion to cancel and discharge the mortgage pursuant to RPAPL 1501(4) should not have been granted because that relief must be sought in an action or counterclaim, not by motion. The issue was properly raised for the first time on appeal:

Supreme Court should not have granted that branch of the cross motion which was pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and vacate the notice of pendency, since relief pursuant to RPAPL 1501(4) must be sought in an action or counterclaim and not by motion … . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record and could not have been avoided if brought to the attention of the Supreme Court … . U.S. Bank N.A. v O’Rourke, 2022 NY Slip Op 05558, Second Dept 10-5-22

Practice Point: Cancellation and discharge of a mortgage and vacation of a notice of pendency pursuant to RPAPL 1501(4) must be sought by an action or a counterclaim, not, as in this case, by a cross-motion. The issue may be raised for the first time on appeal because it is a matter of law and could not have been avoided had it been raised in Supreme Court.

 

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ALTHOUGH IT MAY BE PLED IN THE ALTERNATIVE, A QUANTUM MERUIT CAUSE OF ACTION MUST BE DISMISSED WHERE THE ISSUE IS ADDRESSED BY A VALID CONTRACT (SECOND DEPT).

The Second Department, reversing (modifying) the Court of Claims, determined the quantum meruit cause of action should have been dismissed because the action was based upon a valid contract:

Contrary to the conclusion of the Court of Claims, that branch of the State’s motion which was for summary judgment dismissing the eleventh cause of action, which sought damages based upon a “total cost,” or quantum meruit, method of recovery, should have been granted, on the ground that parties to a valid contract cannot seek damages in quantum meruit as an alternative to a breach of contract claim arising out of the same subject matter … . Quantum meruit may be pleaded in the alternative where there is a bona fide dispute as to the existence of a contract, or where the contract does not cover the dispute in issue … . Here, there clearly was a valid contract, and the amount in dispute was incurred pursuant to the contract. Further, the claims did not involve a qualitative change in the nature of the work which was outside the contemplation of the contract … . Tutor Perini Corp. v State of New York, 2022 NY Slip Op 05556, Second Dept 10-5-22

Practice Point: Although a quantum meruit cause of action may be pled as an alternative to a breach of contract cause of action, it must be dismissed if the underlying issues are addressed by a contract found to be valid.

 

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ALTHOUGH TRADER JOE’S APPARENTLY DID NOT OWN THE PARKING LOT WHERE PLAINTIFF FELL, IT FAILED TO DEMONSTRATE IT DID NOT OCCUPY, CONTROL OR MAKE SPECIAL USE OF THE PARKING LOT; TRADER JOE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant Trader Joe’s motion for summary judgment in this parking lot slip and fall case should not have been granted. Although the parking lot was apparently owned by the town, Trader Joe’s did not demonstrate it did not occupy, control, or make special use of the parking lot:

“‘Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property'” … . “‘In the absence of ownership, occupancy, control, or special use, a party generally cannot be held liable for injuries caused by the dangerous or defective condition of the property'” … . * * *

Trader Joe’s failed to submit evidence sufficient to establish, prima facie, that it did not occupy, control, or make special use of the parking lot where the accident occurred, and that it cannot be held liable for Toner’s alleged injuries … . Toner v Trader Joe’s E., Inc., 2022 NY Slip Op 05555, Second Dept 10-5-22

Practice Point: Even though the defendant did not own the parking lot where plaintiff slipped and fell, to be entitled the summary judgment the defendant must show it did not occupy, control or make special use of the parking lot. The failure to do so here required denial of defendant’s motion.

 

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A DECISION TO RETURN TO THE REGULAR ACCESS SCHEDULE OF PARENTING TIME AFTER A PERIOD OF SUPERVISED PARENTAL VISITS MUST BE BASED UPON ADMISSIBLE EVIDENCE; WHERE FACTS REMAIN IN DISPUTE, A HEARING IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a hearing should have been held before granting defendant’s motion to return to the regular access schedule of parenting time because some facts were still in dispute:

… Supreme Court should have conducted an evidentiary hearing prior to directing that the regular access schedule as set forth in the parties’ stipulation of settlement be implemented immediately. Although the court based its determination on information contained in the parties’ applications, reports from Kids in Common, and statements from counsel for the parties and the attorney for the child during multiple conferences, Kids in Common had not yet advised that the child was ready for a fully normalized access schedule, and a decision regarding child custody and/or parental access should be based on admissible evidence … . Where, as here, facts material to a determination of what parental access is in the best interests of the child remain in dispute, a hearing is required … . Stolzenberg v Stolzenberg, 2022 NY Slip Op 05554, Second Dept 10-5-22

Practice Point: At the time defendant made a motion to return to the regular access schedule of parenting time after a period of supervised visitation facts remained in dispute. The motion should not have been granted without first holding a hearing where only admissible evidence is considered.

 

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THE AMOUNT OF RESTITUTION IS PART OF THE SENTENCE AND MUST BE PRONOUNCED AT SENTENCING; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL AND SURVIVES A WAIVER OF APPEAL (SECOND DEPT).

The Second Department determined the judge’s failure to pronounce the amount of restitution at sentencing required vacating the imposition of restitution and remitting the matter for further proceedings. The issue does not need to be preserved for appeal and is not precluded by a waiver of appeal:

“CPL 380.20 and 380.40(1) collectively require that courts ‘must pronounce sentence in every case where a conviction is entered’ and that—subject to limited exceptions not relevant here—'[t]he defendant must be personally present at the time sentence is pronounced'” … . “Restitution is a component of the sentence to which CPL 380.20 and 380.40(1) apply” … . A violation of CPL 380.20 or 380.40(1) “may be addressed on direct appeal notwithstanding a valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … .

Here, it is undisputed that the precise dollar amount of restitution was not pronounced by the County Court at the time of sentencing, or at any other point on the record. “The County Court should have, but failed to, fix the amount and terms of restitution at the time it pronounced the sentence[s] of which restitution was to be a part” … . People v Long, 2022 NY Slip Op 05545, Second Dept 10-5-22

Practice Point: Restitution is part of the sentence and must be pronounced at sentencing. The issue need not be preserved for appeal and survives a waiver of appeal.

 

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DEFENDANT MOVED TO VACATE HIS CONVICTION BY GUILTY PLEA ON THE GROUND HE WAS NOT AWARE HE COULD PERMANENTLY LOSE HIS DRIVER LICENSE BASED ON THE PLEA; THE MOTION SHOULD NOT HAVE BEEN GRANTED; POST-REVOCATION RELICENSING IS OUTSIDE OF THE COURTS’ CONTROL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea should not have been granted. Defendant argued he would not have pled guilty had he realized he could permanently lose his driver license. The regulation which allowed permanent revocation of defendant’s license did not exist at the time of the plea:

The subject regulations that led to the denial of the defendant’s application to restore his driver license did not exist at the time he pleaded guilty, and the defendant failed to identify any conduct that occurred during the plea proceedings that constituted a violation of his due process rights … . “The defendant’s grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction” … .

… [T]he loss of a driver license is a collateral consequence of a plea of guilty and is not a consequence within the control of the court system … . The Supreme Court had no duty to inform the defendant of this consequence during the plea colloquy … . As the Court of Appeals stated in Matter of Acevedo v New York State Dept. of Motor Vehs. (29 NY3d at 220), “the Commissioner [of the DMV] will have exclusive authority over post-revocation relicensing, and . . . those relicensing determinations will be discretionary.” People v DiTore, 2022 NY Slip Op 05541, Second Dept 10-5-22

Practice Point: Courts have no control over post-revocation relicensing. The Department of Motor Vehicles has exclusive jurisdiction over relicensing. Here defendant’s motion to vacate his conviction by guilty plea on the ground he was not aware he could permanently lose his driver license should not have been granted.

 

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