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THE NYC BOARD OF HEALTH’S RESOLUTION MANDATING VACCINATION AGAINST MEASLES IS VALID AND LAWFUL; THE OBJECTIONS RAISED ON RELIGIOUS GROUNDS WERE REJECTED BECAUSE THE RESOLUTION DID NOT SINGLE OUT, TARGET OR EVEN MENTION RELIGION (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Scheinkman, determined the resolution by the NYC Board of Health mandating vaccination against measles was lawful and valid and did not violate petitioners’ freedom of religion. As a threshold matter the court considered the matter as an exception to the mootness doctrine, because measles outbreaks are likely to occur in the future:

On April 17, 2019, the Board of Health of the Department of Health and Mental Hygiene of the City of New York adopted a resolution stating that, due to the active outbreak of measles among people residing within certain areas of Brooklyn, any person over the age of six months who was living, working, or attending school or child care in the affected areas had to be immunized against measles, absent a medical exemption. Failure to comply was made punishable by fines authorized by law, rule, or regulation, for each day of noncompliance. The plaintiffs/petitioners (hereinafter the petitioners), residents of areas covered by the resolution, challenge its validity. We hold that the resolution was lawful and enforceable, reserving, however, whether any fine imposed upon violation is excessive. The resolution was within the authority of the Board of Health of the Department of Health and Mental Hygiene to make and the resolution itself did not violate any right of the petitioners, including their freedom of religion. * * *

The petitioners profess to hold religious beliefs that hold that a healthy body should not assimilate foreign objects, including vaccine ingredients … . * * *

The Board’s resolution does not target religion or single out religion; it does not even mention religion. There is absolutely no indication that the resolution was adopted for the purpose of infringing the petitioners’ religious practices or suppressing their religious views … . The resolution treats all persons equally, whether religious or not … . The resolution does not create any favored classes at all, much less ones that are secular rather than religious. As the resolution is religiously neutral and generally applicable, it is not subject to strict scrutiny. C.F. v New York City Dept. of Health & Mental Hygiene, 2020 NY Slip Op 07867, Second Dept 12-23-20

 

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THE CONDITIONAL ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE DID NOT MEET THE CRITERIA OF CPLR 3216; THEREFORE THE MATTER SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to vacate the conditional order of dismissal should have been granted because the conditions in CPLR 3216 were not met by the order:

“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed … . “While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216” … , the conditional order of dismissal here “‘was defective in that it failed to state that the plaintiff’s failure to comply with the notice “will serve as a basis for a motion” by the court to dismiss the action for failure to prosecute'” … . The Supreme Court should not have administratively dismissed the action without further notice to the parties and without benefit of further judicial review … . Deutsche Bank Natl. Trust Co. v Henry, 2020 NY Slip Op 07863, Second Dept 12-23-20

 

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A WALKWAY WET FROM RAIN WHICH WAS FALLING AT THE TIME OF THE SLIP AND FALL WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the slip and fall was caused by a dangerous condition. The walkway where plaintiff fell was wet from rain, which was falling at the time:

The mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by showing that the plaintiff’s slip and fall on the landing of a stairway leading to the entrance of the restaurant occurred solely because that area was wet due to precipitation. Among other things, in support of their motions, the defendants submitted the transcript of plaintiff’s deposition testimony, which indicates that the location where the plaintiff slipped and fell was wet due to the rain that had fallen and was falling at the time of his accident … . Derosa v Zaliv, LLC, 2020 NY Slip Op 07862, Second Dept 12-23-20

 

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THE DECRETAL PARAGRAPH OF THE APPELLATE DECISION REMITTING THE MATTER FOR RETRIAL DID NOT IMPOSE THE CONDITIONS ON RETRIAL WHICH WERE IMPOSED BY SUPREME COURT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the decretal paragraph in the appellate decision remitting the matter to Supreme Court did not impose restrictions on the issues to be retried:

“‘A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court”‘ … . “An order or judgment entered by the lower court on a remittitur ‘must conform strictly to the remittitur'” … . The language in the decretal paragraph controls the extent of the remittitur … .

Here, there is no limiting language in the decretal paragraph of our prior decision and order that would indicate that the new trial would be on issues of apportionment of liability among the defendants. Further, there is no language in that decretal paragraph indicating that the damages awards remain undisturbed. Accordingly, the Supreme Court should not have limited the new trial to issues of apportionment of liability among the defendants. Daniele v Pain Mgt. Ctr. of Long Is., 2020 NY Slip Op 07860, Second Dept  12-23-20

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, IMPOSED AN INJUNCTION AND DETERMINED ISSUES OF FACT; NO MOTION WAS BEFORE THE COURT AND NO HEARING WAS HELD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, imposed an injunction on defendant and determined issues of fact without a motion before the court and without holding a hearing:

The Supreme Court, after a status conference … , issued an order, sua sponte, … which, … directed the defendant … to take all steps necessary to obtain a permit from the Department of Buildings to complete the work on one of the subject properties and expedite repairs to that property, including the submission of new plans by the defendant … .

Since no motion was pending before it, the Supreme Court should not have, sua sponte, and without a hearing, imposed an injunction on the defendant and determined issues of fact … . “A court is generally limited to noticed issues that are the subject of the motion before it” … . … The plaintiffs did not move for an injunction … and the court did not hold a hearing … . City of New York v Quadrozzi, 2020 NY Slip Op 07857, Second Dept 12-23-20

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, INCREASED A PENALTY TO WHICH THE PARTIES HAD AGREED IN A SO-ORDERED STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge, sua sponte, should not have increased a penalty to which the parties had stipulated:

“A so-ordered stipulation is a contract between the parties thereto and as such, is binding on them and will be construed in accordance with contract principles and the parties’ intent” … . “When an agreement between parties is clear and unambiguous on its face, it will be enforced according to its terms and without resort to extrinsic evidence” … . Accordingly, a court “should not, under the guise of contract interpretation, ‘imply a term which the parties themselves failed to insert’ or otherwise rewrite the contract” … .

Here, we disagree with the Supreme Court’s sua sponte determination to change the $1,000 per week penalty set forth in the 2013 stipulation … . Although the New York City Landmarks Preservation Law authorizes a penalty of up to $5,000 per day … ,  the parties expressly agreed to a different penalty in their 2013 stipulation. Thus, the court should not have “rewritten” the terms of the 2013 stipulation by changing the amount of the penalty agreed to by the parties. City of New York v Quadrozzi, 2020 NY Slip Op 07856, Second Dept 12-23-20

 

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THE BANKS’ COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS NOT DEMONSTRATED; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted because compliance with the notice requirements of RPAP 1304 was not demonstrated with admissible evidence:

… [T]he plaintiff submitted, inter alia, an affidavit of a business operations analyst employed by the plaintiff, together with copies of 90-day notices sent to the defendants and proof of filing statements from the New York State Department of Financial Services. Although some of the copies of the 90-day notices contain what appear to be bar codes with 22-digit numbers that include the words “USPS CERTIFIED MAIL,” the plaintiff failed to submit any evidence that the mailings were sent by first-class mail in addition to certified mail … . The plaintiff also failed to submit evidence of a standard office mailing procedure or an affidavit of the individual(s) who effected the service … . The submission by the plaintiff of evidence that it filed statements with the New York State Department of Financial Services, without more, is insufficient to establish that the mailing was accomplished pursuant to RPAPL 1304 … . CitiMortgage, Inc. v McGregor, 2020 NY Slip Op 07855, Second Dept 12-23-20

 

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THE DEFENDANTS DEFAULTED IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT BASED ON THE BANK’S ALLEGED FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, WHICH IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE RAISED AS A DEFENSE (SECOND DEPT).

The Second Department determined the judge should not have, sua sponte, dismissed the complaint in this foreclosure action on the ground the bank did not comply with the notice requirements of RPAL 1304. The defendants defaulted and failure to comply with RPAPL 1304 is not a jurisdictional defect. Therefore it must be raised as a defense before a judge can rule on it:

In this action to foreclose a mortgage, in which the defendants failed to appear or answer the complaint, the Supreme Court should have granted the plaintiff’s motion for leave to enter a default judgment and for an order of reference, and should not have, sua sponte, directed dismissal of the complaint based on its determination that the plaintiff failed to establish that it complied with RPAPL 1304 … . Therefore, a plaintiff is not required to disprove the defense unless it is raised by defendants, and in this case the defendants failed to appear in the action or answer the complaint … . Chase Home Fin., LLC v Guido, 2020 NY Slip Op 07854, Second Dept 12-23-20

 

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ATTEMPTED SECOND DEGREE MURDER COUNT MUST BE DISMISSED AS AN INCLUSORY CONCURRENT COUNT OF ATTEMPTED FIRST DEGREE MURDER (FOURTH DEPT).

The Fourth Department determined the attempted second degree murder count must be dismissed as an inclusory concurrent count of attempted first degred murder:

… [T]he part of the judgment convicting defendant of attempted murder in the second degree must be reversed and count two of the indictment dismissed because attempted murder in the second degree is an inclusory concurrent count of attempted murder in the first degree … . People v Mcdonald, 2020 NY Slip Op 07825, Fourth Dept 12-23-20

 

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ONCE THE PLAINTIFFS-TENANTS PROPERLY SOUGHT TO EXERCISE THEIR OPTION TO PURCHASE, THE LANDLORD, WHO IMPROPERLY REFUSED TO HONOR THE OPTION, NO LONGER HAD A RIGHT TO USE AND OCCUPANCY PAYMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ cause of action for return of the rent paid to defendant after the plaintiffs exercised their option to purchase the property should have been granted. Plaintiffs were defendant landlord’s tenants. Plaintiffs sought to exercise an option to purchase the property which was in the lease. Once the plaintiffs properly exercised the option to purchase, the landlord, who refused to honor the option, could no longer seek payment for plaintiffs’ use and occupancy:

… “[I]t is well settled that the legal owner of real property is not entitled to an award for use and occupancy from a contract vendee in possession unless there also exists a landlord-tenant relationship between the parties” … . Under the merger doctrine, “execution of a contract of sale [for real property] between landlord and tenant serves to merge the landlord-tenant relationship into the vendor-vendee relationship and thus effectively terminates the former, unless the parties clearly intend the contrary result” … . “An intention to deviate from the general rule and to avoid a merger may be directly expressed in the agreement or may be inferred from a medley of factors such as the terms of the agreement, the circumstances of its making, and the subsequent behavior of the parties” … .

Here … the parties did not express an intention to deviate from the general rule or to avoid a merger upon the exercise of the purchase option. To the contrary, the terms of the rider provided, in relevant part, that “[i]n the event that Tenant decides not to exercise its option to purchase, all provisions herein remain in full force and effect and Tenant remains liable for all payments hereunder, including but not limited to rent” … . Since the plaintiffs validly exercised their option to purchase on July 21, 2015, and became a contract vendee in possession, it follows that the landlord-tenant relationship terminated on that date by application of the merger doctrine … . Blackburn Food Corp. v Ardi, Inc., 2020 NY Slip Op 07850, Second Dept 12-23-20

 

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