You are here: / PLAINTIFF’S DECEDENT, A PATIENT IN DEFENDANT REHAB FACILITY, FELL...

Search Results

/ , ,

PLAINTIFF’S DECEDENT, A PATIENT IN DEFENDANT REHAB FACILITY, FELL WHEN WALKING UNATTENDED BACK TO HIS BED FROM THE BATHROOM; PLAINTIFF ALLEGED THE FAILURE TO PROVIDE A BED ALARM WAS A PROXIMATE CAUSE; THAT CAUSE OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PROPERLY GRANTED BECAUSE PLAINTIFF DID NOT SUBMIT EXPERT EVIDENCE IN OPPOSITION (WHICH WOULD NOT HAVE BEEN REQUIRED IF THE CAUSE OF ACTION SOUNDED IN NEGLIGENCE, AS THE MOTION COURT HAD HELD) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cause of action at issue sounded in medical malpractice, not negligence. Therefore, to avoid summary judgment, plaintiff was required to submit expert opinion evidence in opposition. Plaintiff’s decedent, a patient in a rehabilitation facility (defendant St. James), fell when walking unattended after going to the bathroom. Plaintiff alleged defendant’s failure to provide decedent with a bed alarm was a proximate cause of the fall. The motion court held that cause of action sounded in negligence and raised a jury question:

The essence of the allegation that St. James improperly failed to provide the decedent with a bed alarm which would have prevented his fall is that it improperly assessed his condition and the degree of supervision necessary to prevent him from falling, which sounds in medical malpractice … . Thus, with respect to this allegation, St. James bore the initial burden of establishing either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the decedent’s injuries … .

In response to St. James’ prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact by submitting an expert opinion that specifically addressed the defense expert’s assertions … . Accordingly, the Supreme Court should have granted that branch of St. James’ motion which was for summary judgment dismissing so much of the complaint as alleged a failure to provide the decedent with a bed alarm. Losak v St. James Rehabilitation & Healthcare Ctr., 2021 NY Slip Op 05961, Second Dept 11-3-21

 

/ ,

THE ACTION WAS NOT COMMENCED UNTIL TEN DAYS BEFORE THE STATUTE OF LIMITATIONS EXPIRED AND PLAINTIFF’S COUNSEL DID NOT TIMELY COMPLETE SERVICE BY MAILING THE SUMMONS AND COMPLAINT; PLAINTIFF WAS NOT ENTITLED TO AN EXTENSION OF TIME TO SERVE THE DEFENDANT BECAUSE LAW OFFICE FAILURE PRECLUDED AN EXTENSION FOR GOOD CAUSE AND THE LACK OF DILIGENCE PRECLUDED AN EXTENSION IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department determined plaintiff did not demonstrate could good cause for failing to timely mail the summons and complaint to defendant and was not entitled to an extension of time to serve the defendant in the interest of justice. The court noted that law-office-failure precludes an extension for good cause, and the attorney’s lack of diligence in filing the action (ten days before the expiration of the statute of limitations) and in serving the pleadings ruled out an extension in the interest of justice:

The plaintiff failed to demonstrate that she was entitled to an extension of time to serve Marin [defendant] for good cause, as she failed to establish that she exercised reasonably diligent efforts in attempting to effect proper service … . The plaintiff’s attorney’s mistake in failing to note, until pointed out in the defendants’ reply papers, that Marin had not been served by mail, amounts to law office failure, which does not constitute good cause … .

… [T]he plaintiff failed to establish her entitlement to an extension of time for service in the interest of justice given the lack of diligence in commencing the action, which was not commenced until 10 days before the statute of limitations expired; the lack of diligence in effecting service; the more than six-month delay between the time the summons and complaint were filed and the time the plaintiff’s cross motion, inter alia, for an extension was made; and the lack of an excuse, other than law office failure, for the failure to effect timely service … . Jordan-Covert v Petroleum Kings, LLC, 2021 NY Slip Op 05960, Second Dept 11-3-21

 

/ , , ,

PLAINTIFF’S DECEDENT WAS KILLED BY A DRIVER WHO WAS BEING PURSUED BY THE POLICE; THE POLICE DEPARTMENT’S INTERNAL RULES IMPOSED A HIGHER STANDARD OF CARE FOR POLICE-CHASES THAN THE VEHICLE AND TRAFFIC LAW; THE JURY SHOULD HAVE BEEN TOLD THE INTERNAL RULES COULD BE CONSIDERED ONLY AS SOME EVIDENCE OF NEGLIGENCE; PLAINTIFF’S JUDGMENT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiff’s judgment after trial and ordering a new trial in this traffic accident case, determined the defendant police department’s internal police-chase rules should not have been admitted in evidence without a limiting instruction explaining the rules could be considered as some evidence of negligence. The internal rules imposed a higher standard of care for police-chases than the reckless-disregard standard imposed by the Vehicle and Traffic Law. Plaintiff’s decedent was killed by a driver who was being pursued by the police. The jury found both the driver and the police negligent:

The Suffolk County defendants are correct that the Supreme Court erred in admitting into evidence, without any limiting instruction, the Suffolk County Police Department Rules and Procedures on vehicular pursuits. An organization’s internal rules or manuals, “to the extent they impose a higher standard of care than is imposed by law, are inadmissible to establish” a violation of the standard of care … .

Here, the rules and regulations at issue imposed a higher standard of care than the reckless disregard standard imposed by Vehicle and Traffic Law § 1104, which “‘qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in an emergency operation, and precludes the imposition of liability for otherwise privileged conduct except where the driver acted in reckless disregard for the safety of others'” … . Thus, we conclude that the Supreme Court committed reversible error in admitting the internal rules without providing a limiting instruction that the rules could be considered only as some evidence of recklessness along with other factors … . Foster v Suffolk County Police Dept., 2021 NY Slip Op 05956, Second Dept 11-3-21

 

/ ,

PLAINTIFF DID NOT SATISFACTORILY EXPLAIN THE DELAY IN BRINGING THE UNTIMELY CROSS-MOTION FOR SUMMARY JUDGMENT; THEREFORE SUPREME COURT SHOULD NOT HAVE CONSIDERED THE MERITS OF THE MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s untimely cross-motion for summary judgment should not have been granted because the delay in making the cross-motion was not satisfactorily explained:

Pursuant to CPLR 3212(a), courts have “considerable discretion to fix a deadline for filing summary judgment motions” … , so long as the deadline is not “earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” … . Absent a “satisfactory explanation for the untimeliness,” constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits … . However, an untimely cross motion for summary judgment may nevertheless be considered by the court “where a timely motion was made on nearly identical grounds” … .

… Supreme Court erred in considering the plaintiff’s untimely cross motion. The cross motion was made months after the deadline imposed by the court had elapsed, and the plaintiff offered no explanation for the delay. Contrary to the plaintiff’s contention, his cross motion did not raise nearly identical issues as [defendant’s] timely motion, which had a different factual basis and addressed substantively different violations of the Industrial Code … . Dojce v 1302 Realty Co., LLC, 2021 NY Slip Op 05950, Second Dept 11-3-21

 

/

THE DEFENDANT’S EXECUTION OF A POWER OF ATTORNEY IN FAVOR OF HER (NON-ATTORNEY) HUSBAND DID NOT AUTHORIZE HER HUSBAND TO FILE COURT PAPERS ON HER BEHALF IN RESPONSE TO PLAINTIFF’S ACCOUNT STATED ACTION; THE HUSBAND’S REPRESENTATION OF DEFENDANT IS PROHIBITED BY THE JUDICIARY LAW (SECOND DEPT).

The Second Department determined defendant’s husband could not represent the defendant in this account stated action based upon his holding a power of attorney executed by the defendant:

The plaintiff commenced this action, inter alia, to recover on an account stated, alleging that the defendant failed to pay sums due on her credit card account. Following service of the summons and complaint, the defendant’s husband, James W. Gilliam II (hereinafter Gilliam), purportedly in his capacity as the defendant’s attorney-in-fact by short form power of attorney, in accordance with New York General Obligations Law §§ 5-1502A-N, filed with the court an answer and certain cross claims on behalf of the defendant. …

“New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney” … . The designation as an attorney-in-fact under General Obligations Law §§ 5-1502A-N does not confer upon a designated agent the right to provide representation as an attorney-at-law, and “cannot be read to displace the provisions of Judiciary Law § 478” … . Discover Bank v Gilliam, 2021 NY Slip Op 05949, Second Dept 11-3-21

 

/

IN THIS DIVORCE ACTION, HUSBAND WAS NOT ENTITLED TO CREDIT FOR MORTGAGE PAYMENTS MADE BEFORE THE TERMINATION OF THE MARRIAGE WAS CONTEMPLATED (SECOND DEPT).

The Second Department determined plaintiff husband in this divorce action should not have been awarded credit for mortgage payments made before terminating the marriage was contemplated:

Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence. Where a party has paid the other party’s share of what proves to be marital debt during the pendency of the action, including payments toward the mortgage on the marital residence, reimbursement is required … . However, “[a]s a general rule, where the payments are made before either party is anticipating the end of the marriage, . . . courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets” … . Here, the plaintiff’s payments toward the mortgage, which was satisfied in October 2017, were made prior to the commencement of this action, and thus, the plaintiff is not entitled to a credit for those payments. Cuomo v Moss, 2021 NY Slip Op 05945, Second Dept 11-3-21

 

/ , ,

QUESTIONS OF FACT ABOUT WHETHER THE INSURED MADE A SPECIFIC REQUEST TO DEFENDANT INSURANCE-BROKER FOR COVERAGE AND WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN THE INSURED AND THE BROKER; THE BREACH OF CONTRACT CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THE NEGLIGENT MISREPRESENTATION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendant insurance-broker’s motion for summary judgment on the breach of contract cause of action was properly denied, and the motion for summary judgment on the negligent misrepresentation cause of action should have been denied. The issues are whether the insured made a specific request for coverage and whether there was a special relationship between the insured and defendant broker:

“An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so … . Generally, “‘[t]o set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy'” … . “Thus, the duty is defined by the nature of the client’s request” … . However, “[w]here a special relationship develops between the broker and client, . . . the broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage” … .

… [T]he defendant insurance broker failed to meet its initial burden of tendering sufficient evidence to demonstrate the absence of triable issues of fact with respect to whether the plaintiff client made a specific request for coverage which was not obtained … . … [T]riable issues of fact exist as to whether a specific interaction took place between the plaintiff and the defendant regarding a question of coverage related to the plaintiff’s renovation work on the insured property that could give rise to a special relationship between the parties … . Copacabana Realty, LLC v A.J. Benet, Inc., 2021 NY Slip Op 05944, Second Dept 11-3-21

 

/ ,

IN COMPUTING THE AMOUNT OWED IN THIS FORECLOSURE ACTION, THE REFEREE RELIED ON AN AFFIDAVIT FROM A BANK EMPLOYEE WHICH DID NOT INCLUDE THE RELATED BUSINESS RECORDS; THE AFFIDAVIT THEREFORE WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s computation of the amount owed in this foreclosure action was not supported by the record. The affidavit of the bank’s employee was based on business records which were not produced, rendering the affidavit hearsay:

Supreme Court should have denied the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale, and granted that branch of the defendants’ cross motion which was to reject the referee’s report. The referee’s computations as to the amount due and owing to the plaintiff were not substantially supported by the record … . An affidavit of an assistant vice president of the plaintiff, which was submitted in support of the plaintiff’s motion to establish the amount due and owing, constituted inadmissible hearsay and lacked probative value because the business records purportedly relied upon in making the calculations were not produced … . Bank of Am., N.A. v Barton, 2021 NY Slip Op 05939, Second Dept 11-3-21

 

/ ,

THE CONTRACT OF SALE INCLUDED THE PURCHASER’S AGREEMENT TO FORFEIT THE DOWN PAYMENT IF SHE DID NOT CLOSE ON THE AGREED DATE; THEREFORE THE SELLERS WERE ENTITLED TO THE DOWN PAYMENT; UNJUST ENRICHMENT CANNOT BE CLAIMED IN THE FACE OF A WRITTEN AGREEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the failure to close on the date agreed to in the contract of sale was a default entitling defendants to retain the down payment:

Defendants submitted a signed copy of the contract of sale, which contains all the material terms, and the amendment to the contract, pursuant to which plaintiff agreed that, in exchange for additional time to close on the purchase, she would cover defendants’ carrying costs and would waive any right to recovery of the down payment if she did not close on the sale by the agreed-to date. Plaintiff did not close by the required date, and the balance of the down payment was remitted to defendants. Plaintiff’s failure to close by the agreed-to date constitutes a default under the purchase agreement and the amendment thereto, and the default entitles defendants to retain the down payment as liquidated damages pursuant to paragraph 13.1 of the purchase agreement and paragraph 5 of the amendment … .

Similarly, a claim for unjust enrichment will not stand in the face of the written agreement … . An appeal to equity is equally unavailing, since the law is established that “a vendee who defaults on a real estate contract without lawful excuse cannot recover his or her down payment” … . Jennings v Silfen, 2021 NY Slip Op 05923, First Dept 10-28-21

 

/ , ,

SUPREME COURT SHOULD NOT HAVE ORDERED THE SALE OF THE MARITAL RESIDENCE; HUSBAND AND WIFE HAD NOT AGREED ON THE MATERIAL TERMS OF THE SALE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, over a two justice dissent, determined the wife did not consent to the sale of the marital residence. There was never a meeting of the minds. Therefore Supreme Court should not have ordered the sale:

The husband’s proposed order contained many of the conditions imposed by Supreme Court in the order on appeal, including scheduled mandatory price reductions and required acceptance of certain offers. The wife’s proposed counter order, on the other hand, contained no proposed initial list price, no procedure for list price reduction or reevaluation, and no required acceptance of offers at any price level. As to a potential sale, the wife’s proposed counter order provided that the property “should either be listed for sale or the Wife shall advise the Husband in writing that she intends to buy-out his interest in the Townhouse” and, further, that “[t]he Townhouse will only be sold under the terms of an agreed Stipulation between the parties.”

The order on appeal reflects that Supreme Court adopted the husband’s order with minimal revisions, essentially rejecting the wife’s preconditions to the sale of the townhouse and imposing its own additional conditions. … [E]ven assuming arguendo that the dissent is correct that the wife initially agreed to the sale of the townhouse, she revoked her consent because the parties were unable to agree on the material terms of the sale … . Taglioni v Garcia, 2021 NY Slip Op 05936, First Dept 10-28-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy