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A TIMELY BUT DEFECTIVE ATTEMPT TO COMMENCE AN ARTICLE 78 PROCEEDING IS A JURISDICTIONAL DEFECT WHICH CANNOT BE CURED BY A SECOND ATTEMPT AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS HAS RUN (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petitioner’s Article 78 action should have been dismissed because it was not properly commenced within four months. An attempt to commence the action was timely made, but the petition was returned:

An article 78 proceeding must be commenced within four months of the final determination under review (see CPLR 217[1]). Such a proceeding is commenced when the clerk of the court receives the petition in valid form … . Although petitioners attempted to file the petition in Queens County within four months, they did not do so in a manner which was then authorized (see CPLR 304[b]; 22 NYCRR 202.5-b[a], 202.5-bb[a]). The petition was returned to petitioners, who filed it after the four-month period had passed. The petition was untimely, and the court had no discretion to extend the statute of limitations … . Contrary to petitioners’ contention, the deficiency in their initial filings is not subject to correction pursuant to CPLR 2001 so as to render the proceeding timely, as the failure to file the papers required to commence a proceeding constitutes a nonwaivable, jurisdictional defect … . Matter of Heffernan v New York City Mayor’s Off. of Hous. Recovery Operations, 2021 NY Slip Op 04276, First Dept 7-8-21

 

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THERE IS A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE WORN STEP IN THIS SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether defendants had constructive notice of the condition of a step in this slip and fall case:

… [T]he affidavit of plaintiff’s expert and the photographic evidence were sufficient to raise an issue of fact as to constructive notice. The expert opined that the condition depicted in the photographs violated the Building Code and that the step was worn for several years prior to the accident. Furthermore, the photographs depicted a condition that a jury might find was present for a sufficient time for defendants to have discovered and remedied it … . Martinez v 560-568 Audubon Realty LLC, 2021 NY Slip Op 04277, First Dept 7-8-21

 

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A SUPPRESSION MOTION CANNOT BE DENIED ON A GROUND NOT RAISED BY THE PEOPLE (FIRST DEPT).

The First Department, holding the appeal in abeyance, noted that a suppression motion may not be denied on a ground not raised by the People:

The motion to suppress should not have been denied on a ground not raised by the People. It is unclear to what extent the suppression court considered and credited the People’s argument regarding probable cause or whether the search was outside of the Fourth Amendment’s purview under the circumstances. Accordingly, we hold the appeal in abeyance and remand for determination, based on the hearing minutes, of the issues raised at the hearing, but not decided … . People v Hatchett, 2021 NY Slip Op 04282, First Dept 7-8-21

 

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A SETTLEMENT EMAIL WILL BE DEEMED SIGNED BY THE SENDING ATTORNEY WITHOUT RETYPING THE ATTORNEY’S NAME IN THE EMAIL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, overruling precedent, determined it is no longer necessary for an attorney to retype his or her name in an email stipulation of settlement. As long as  the attorney’s name appears in the “prepopulated” area of the email it will be deemed to have been signed by the attorney:

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Since 1999, New York State has joined other states in allowing, in most contexts, parties to accept electronic signatures in place of “wet ink” signatures. Section 304(2) of New York’s Electronic Signatures and Records Act (ESRA) provides: “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” Moreover, the statutory definition of what constitutes an “electronic signature” is extremely broad under the ESRA, and includes any “electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record” (State Technology Law § 302[a]). We find that if an attorney hits “send” with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature. Matter of Philadelphia Ins. Indem. Co. v Kendall, 2021 NY Slip Op 04284, First Dept 7-8-21

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION REQUIRED REVERSAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined County Court should not have denied defendant’s request for a circumstantial evidence jury instruction:

… [T]here was no direct evidence identifying defendant as the shooter or as having possessed a loaded firearm. Indeed, there was no DNA or fingerprint evidence linking defendant to the Colt .45 caliber handgun that was recovered near the scene or the shell casing and projectiles that were found to have been fired from that gun … . Further, the surveillance footage — which only distantly captured the incident — did not depict defendant with a firearm. Nor was it possible to discern from the footage who shot the victim. …

Despite denying defendant’s request for a circumstantial evidence charge, County Court nonetheless gave a modified version of the charge. This modified version, however, was wholly inadequate. Most importantly, the modified version failed to include a critical component of the circumstantial evidence charge — namely, “‘that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence'” … . Given that County Court improperly denied defendant’s request for a circumstantial evidence charge and that the modified charge was insufficient, “the jury could not have known of its duty to apply the circumstantial evidence standard to the prosecution’s entire case” … . People v Taylor, 2021 NY Slip Op 04258, Third Dept 7-8-21

 

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UNDER THE NEW APPELLATE PRACTICE RULES FOR CROSS-APPEALS, DEFENDANTS ABANDONED THIER APPEAL BECAUSE THEY DID NOT FILE THEIR BRIEF WITHIN SIX MONTHS OF FILING THE NOTICE OF APPEAL; THE COURT OPTED TO WAIVE DEFENDANTS’ NONCOMPLIANCE AND DEEMED THE CROSS APPEAL PROPERLY BEFORE THE COURT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, discussed the applicability of the new practice rules for appeals to cross-appeals:

… [T]he new practice rules pertaining to cross appeals specify that “[t]he party that first perfects the appeal shall be denominated the appellant-respondent” (Rules of App Div, All Depts [22 NYCRR] § 1250.9 [f] [1] [iii]). Until such time as either party has perfected, the identity of a party as either an appellant-respondent or a respondent-appellant remains to be determined. Having filed a notice of cross appeal on June 2, 2020, defendants had until December 2, 2020 to perfect their appeal or otherwise seek an extension. Defendants failed to do either. For this reason, plaintiff maintains that the cross appeal was effectively abandoned and technically plaintiff is correct. The rules, read as a whole, require each party to preserve its position until such time as one of the parties actually perfects its appeal. That said, the rules require the parties to “consult and make best efforts to stipulate to a briefing schedule” (Rules of App Div, All Depts [22 NYCRR] § 1250.9 [f] [1] [i]), and there is no indication in this record or the briefs that such consultation occurred here. In any event, since this is our first decision addressing implementation of the new practice rules relating to cross appeals, we opt to waive defendants’ noncompliance and deem the cross appeal properly before us (see Rules of App Div, All Depts [22 NYCRR] § 1250.1 [g]). New York Mun. Power Agency v Town of Massena, 2021 NY Slip Op 04268, Third Dept 7-8-21

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT; THE COMPLAINT ALLEGED THE AGREEMENT TO CONVEY A FARM TO A PARTNERSHIP WAS SUBJECT TO AN EXCEPTION TO THE STATUTE OF FRAUDS FOR PART PERFORMANCE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the complaint stated a cause of action for breach of contract. The complaint alleged the agreement to convey a farm to a partnership was subject to an exception to the statute of frauds for part performance:

“General Obligations Law § 5-703 (4) has carved out an exception to the statute of frauds to permit courts of equity to compel the specific performance of agreements in cases of part performance” … . “A party’s partial performance of an alleged oral contract will be deemed sufficient to take such contract out of the statute of frauds only if it can be demonstrated that the acts constituting partial performance are unequivocally referable to said contract” … .

In his complaint, plaintiff alleges that he drastically changed his behavior after the agreement, including leaving his studies at Cornell University to devote his full attention to the partnership. Plaintiff also claims that he moved onto the subject premises, that he contributed financially to the business, which was struggling under burdensome mortgage payments, and that defendant referred to him as his business partner and co-owner of the farm. Plaintiff also made substantial improvements to both his residence on the farm, in which he resided full time, and to the farm itself. Given that all of these actions are unequivocally referable to the alleged oral agreement, we find that dismissal of the complaint under CPLR 3211 (a) (5) based upon the statute of frauds was improper … . Leonard v Cummins, 2021 NY Slip Op 04269, Third Dept 7-8-21

 

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THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) WHEN IT APPROVED THE DEVELOPMENT WHICH INCLUDED APARTMENTS AND A COSTCO RETAIL FACILITY; SUPREME COURT SHOULD NOT HAVE ANNULLED THE APPROVAL AS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department, reversing Supreme Court, in an exhaustive analysis which cannot be fairly summarized here, determined the Planning Board took the required hard look, pursuant to the State Environmental Quality Review Act (SEGRA), at all the aspects of the proposed development project. Therefore the Planning Board’s approval of the project should not have been annulled as arbitrary and capricious. The development included apartments and a Costco Wholesale retail facility. With regard to the compatibility issues, the court wrote:

In essence, although the Costco store may, to some, not be the most compatible use, the Planning Board properly viewed it in the context of the entire project. As such, the Planning Board considered not only the fact that the Costco store is a permitted use that complied with all of the design standards contained in Local Law No. 4, but also the other tangible benefits of the project, which directly aligned with the purpose of the Local Law. These factors included pedestrian and bicycle accommodations and improvements. Also, the Planning Board considered access management and transit improvements in design and layout, including the reduction of lanes … , the construction of a new roundabout to process traffic more efficiently, the reconfiguration of a major intersection to reduce vehicular speed and a new CDTA bus stop, which CDTA confirmed would ease congestion, improve safety and result in a “marked improvement for customers” in the area. The Planning Board proposed the construction of a new connector road … , and numerous project design features to prevent noise and visual and other impacts. All told, the Planning Board discharged its duty and took the requisite hard look as to compatibility and satisfied its obligations under SEQRA … . Matter of Hart v Town of Guilderland, 2021 NY Slip Op 04273, Third Dept 7-8-21

 

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PLAINTIFF BANK’S MOVING FOR SUMMARY JUDGMENT TWO YEARS AFTER THE DEFENDANT’S DEFAULT DID NOT DEMONSTRATE IT DID NOT INTEND TO ABANDON THE ACTION; THEREFORE DEFENDANT WAS ENTITLED TO DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3215 (C) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate an adequate excuse for failure to take steps to enter a default judgment in this foreclosure action within one year of the default:

The plaintiff’s … argument … [is] that, by moving for summary judgment and leave to enter a default judgment … , the plaintiff had “manifest[ed] its intent not to abandon this case.” However, while “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” … , and a plaintiff is not even required to specifically seek a default judgment within a year, but may take “the preliminary step toward obtaining a default judgment of foreclosure and sale by moving . . . for an order of reference pursuant to RPAPL 1321” … that preliminary step still must be taken “within one year of [a defendant’s] default” … . Here, since the plaintiff moved for summary judgment and an order of reference almost two years after the default, when the statutory time within which to enter a default had long since expired, it was too late for the plaintiff to “manifest an intent not to abandon the case” … so as to avoid dismissal of the complaint … . US Bank N..A.. v Davis, 2021 NY Slip Op 04251, Second Dept 7-7-21

 

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PLAINTIFFS’ ATTORNEY PROPERLY WITHDREW ON IRRECONCILABLE DIFFERENCES GROUNDS AND WAS ENTITLED TO 95% OF THE CONTINGENCY FEE DESPITE THE FAILURE TO SUBMIT TIME RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney, Greenberg, properly withdrew from representing the plaintiffs on the ground of irreconcilable differences and was entitled to 95% of the contingency fee:

Greenberg demonstrated its entitlement to an award of 95% of the contingency fee. “In fixing an award of legal fees in quantum meruit, a court should consider evidence of the time and skill required in the case, the complexity of the matter, the attorney’s experience, ability, and reputation, the client’s benefit derived from the services, and the fee usually charged by attorneys for similar services” … . “‘Quantum meruit compensation is not limited to a calculation based on the numbers of hours worked multiplied by a reasonable hourly rate'” … . “The calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations” … . Here, the record demonstrates, inter alia, the extensive work performed on the case by Greenberg over a period of 4½ years, the nature of the work performed, and the relative contributions made by Greenberg, entitling it to 95% of the contingency fee. While Greenberg failed to submit time records in support of the services it rendered, the value of its services could still be ascertained … . Tucker v Schwartzapfel Lawyers, P.C., 2021 NY Slip Op 04250, Second Dept 7-7-21

 

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