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PLAINTIFF MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; EVEN THOUGH THE MOTION WAS WITHDRAWN, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (US Bank’s) motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c) should not have been granted in this foreclosure action. Plaintiff had moved for an order of reference within one year of defendant’s default but then withdrew the motion:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” “It 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)” … . “As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c)” … . Moreover, ” the withdrawal of the plaintiff’s motion for an order of reference [does] not demonstrate that the plaintiff failed to initiate proceedings for entry of a judgment of foreclosure and sale'” … .

Here, the Supreme Court should have denied that branch of US Bank’s motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned, because the plaintiff moved for an order of reference within one year of US Bank’s default … . “In such cases, the complaint should not be dismissed, even if, as here, the plaintiff’s motion is later withdrawn'” … . Bank of Am., N.A. v Wessen, 2020 NY Slip Op 04141, Second Dept 7-22-20

 

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THE CITY NEED NOT PROVE THE POLICE CORROBORATED INFORMATION PROVIDED BY AN INFORMANT IN A CIVIL ACTION FOR FALSE ARREST STEMMING FROM THE EXECUTION OF A SEARCH WARRANT BASED UPON ‘BAD CI INFORMATION’ (SECOND DEPT).

The Second Department determined that, in the context of a civil trial alleging false imprisonment stemming from police officers entering plaintiffs’ apartment to execute a search warrant, the city does not have to prove the police properly corroborated the informant’s allegations on which the warrant was based. Apparently, the informant provided “bad … information:”

To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged … . “The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment” … . Unlike in a criminal prosecution, where the hearsay statements of an informant can only constitute probable cause if it is demonstrated that the informant is reliable and had a sufficient basis for his or her knowledge, in a trial in a civil action alleging false arrest or false imprisonment, it is not “appropriate for a jury to determine, as a factual matter, whether the police obtained sufficient corroboration of the information provided by an informant” … . In a civil action resulting from the detention of the occupants of premises searched pursuant to a search warrant, “there is a presumption of probable cause for the detention which the plaintiff must rebut with evidence that the warrant was procured based upon the false or unsubstantiated statements of a police officer” … . Ali v City of New York, 2020 NY Slip Op 04138, Second Dept 7-23-20

 

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ONE DEFENDANT BREACHED A CONTRACT; THE OTHER DEFENDANT TORTIOUSLY INTERFERED WITH PLAINTIFF’S PROSPECTIVE BUSINESS RELATIONS; THE JURY AWARDED SEPARATE DAMAGE-AMOUNTS FOR EACH DEFENDANT; SUPREME COURT SHOULD NOT HAVE HELD BOTH DEFENDANTS JOINTLY AND SEVERALLY LIABLE FOR THE COMBINED AMOUNT OF DAMAGES (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Cohen, reversing Supreme Court, determined the defendants, one of which was found by the jury to have breached a contract, and the other which was found to have tortiously interfered with plaintiff’s prospective business relations, should not have been deemed jointly and severally liable. Each was separately liable for the separate damage-amounts assigned by the jury:

The jury determined that the plaintiff sustained damages in the amount of $60,000 resulting from [defendant] DIG’s interference with the plaintiff’s prospective business relationship with [defendant] B1 Advanced, and that the plaintiff sustained damages in the amount of $657,000 resulting from B1 Advanced’s breach of contract. Contrary to the Supreme Court’s determination, the damages arising out of DIG’s tortious interference could, in fact, differ from the damages arising out of B1 Advanced’s breach of contract. The jury assessed the amount of damages against DIG based on the plaintiff’s loss of prospective profits resulting from DIG’s tortious interference with the plaintiff’s ongoing business relationship with B1 Advanced … . Conversely, “[d]amages for breach of contract include general (or direct) damages, which compensate for the value of the promised performance, and consequential damages, which are indirect and compensate for additional losses incurred as a result of the breach, such as lost profits” … . The jury’s apportionment of damages reflects its finding that DIG was not responsible for all of the damages caused by B1 Advanced’s breach of contract. Achieve It Solutions, LLC v Lewis, 2020 NY Slip Op 04137, Second Dept 7-22-20

 

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DEFENDANTS DID NOT REQUEST THAT PLAINTIFFS GRANT A LICENSE FOR EXCAVATION WORK NEXT DOOR TO PLAINTIFFS’ BUILDING; NYC BUILDING CODE 3309.4 IMPOSES STRICT LIABILITY FOR DAMAGE CAUSED BY SUCH EXCAVATION WORK; OVERRULING PRECEDENT, PLAINTIFFS DID NOT NEED TO SHOW EITHER THAT A LICENSE WAS GRANTED OR THAT PLAINTIFFS TOOK OTHER STEPS TO PROTECT THEIR PROPERTY TO BE ENTITLED TO SUMMARY JUDGMENT FOR DEFENDANTS’ VIOLATION OF BUILDING CODE SECTION 3309.4 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, overruling precedent, determined plaintiffs were entitled to summary judgment in this action alleging damage to plaintiffs’ building caused by defendants’ excavation for a new building next door. The New York City Building Code (BC) section 3309.4 imposes strict liability for damage caused by such excavation work. Here the defendants did not ask plaintiffs for a license in accordance with BC 3309.4 and no license was granted by the plaintiffs. Prior decisions held a plaintiff must show it granted a license for the work, or otherwise took steps to protect the property, before the plaintiff would be entitled to summary judgment on an action alleging a violation of BC 33309.4. Those decisions should no longer be followed:

We hold that where, as here, a plaintiff presents evidence showing, prima facie, that no request for a license was made to the plaintiff in accordance with section BC 3309 before the excavation work began, a plaintiff moving for summary judgment on the issue of liability on a cause of action alleging a violation of section BC 3309.4 need not demonstrate, prima facie, that the plaintiff granted the requisite license, or, in the absence of a license, what, if any, actions it took to protect its premises. 211-12 N. Blvd. Corp. v LIC Contr., Inc., 2020 NY Slip Op 04134, Second Dept 7-22-20

 

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FORMER LAW FIRM PARTNER WAS ENTITLED TO AN ACCOUNTING; IN DETERMINING THE BUYOUT PRICE UPON THE PARTNER’S WITHDRAWAL FROM THE PARTNERSHIP, THE TERMS OF THE PARTNERSHIP AGREEMENT, RATHER THAN PARTNERSHIP LAW, CONTROL (SECOND DEPT).

The Second Department determined plaintiff, a former partner in a law firm, was entitled to an accounting and a buyout price calculated pursuant to the provisions of the partnership agreement:

” The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest'” … . A plaintiff seeking an accounting has to show that he or she entrusted money or property to the defendant with respect to which he or she has an interest or which, in equity, ought to be divided … . Here, we agree with the Supreme Court’s determination awarding the plaintiff summary judgment on the cause of action for an accounting to determine the amount due to him pursuant to the terms of the partnership agreement. ” … [W]here . . . there is a fiduciary relationship between the parties, there is an absolute right to an accounting notwithstanding the existence of an adequate remedy at law” … Here, it is undisputed that there was a fiduciary relationship between the plaintiff and the defendants. …

… “[A] partnership is a voluntary, contractual association in which persons carry on a business for profit as co-owners. In the agreement establishing a partnership, the partners can chart their own course” … . … [W]hile New York’s Partnership Law provides certain default provisions where a partnership agreement is silent, where the agreement clearly sets forth the terms between the partners, it is the agreement that governs … .

Here, the partnership agreement expressly provides that the partnership “shall not be dissolved” upon the resignation of a partner. The terms of the partnership agreement take precedence over Partnership Law § 62, which permits a partnership to be dissolved at any time by any partner. The firm was not dissolved, but rather, the plaintiff withdrew from the firm on August 3, 2010. Accordingly, pursuant to the terms of the partnership agreement, the plaintiff was entitled to the buyout price, as defined in that agreement, and payable in accordance with the terms of that agreement. Zohar v LaRock, 2020 NY Slip Op 04202, Second Dept 7-22-20

 

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THE HOSPITAL DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT LAY A SUFFICIENT FOUNDATION FOR THE EXPERT’S OPINIONS ON MATTERS OUTSIDE OF OBSTETRICS AND GYNECOLOGY; THE HOSPITAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the hospital defendants’ expert’s affidavit did not establish that the expert (D’Amico) was qualified to offer an opinion on several issues surrounding the birth process and therefore did not provide sufficient evidence to support the hospital defendants’ motion for summary judgment:

… [T]he expert affirmation offered by the hospital defendants lacked probative value, because the expert, a physician who was board-certified in the fields of obstetrics and gynecology, failed to lay a foundation for the reliability of his opinions in the fields of pediatrics, orthopedics, or anesthesia.

” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” … . “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . “Where no such foundation is laid, the expert’s opinion is of no probative value,'” and is therefore insufficient to meet a party’s burden on a summary judgment motion … . …

We reject the hospital defendants’ contention that D’Amico’s professed familiarity with “postpartum and neonatal care,” through his extensive experience delivering newborns, was sufficient, without more, to establish his qualifications to render reliable opinion testimony on issues including, inter alia: (1) whether [defendant] De Jesus, an orthopedic intern, acted in an appropriate and timely manner in diagnosing and treating Roizman’s [plaintiff’s] pubic bone diastasis; (2) whether [defendant] Naves-Ruiz, a pediatrician, properly responded to the infant’s neonatal oxygen desaturation, properly ruled out sepsis and treated the infant with antibiotics for presumed pneumonia and infection, and performed all appropriate tests; (3) whether the staff of the Lenox Hill Hospital Department of Anesthesiology properly performed Roizman’s epidural; and, (4) whether the staff of Lenox Hill Hospital was negligent and in any way contributed to the plaintiffs’ alleged injuries … . Roizman v Stromer, 2020 NY Slip Op 04196, Second Dept 7-22-20

 

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ALTHOUGH THE EMERGENCY HAD DIMINISHED AND THE POLICE OFFICER HAD TURNED OFF HIS SIREN AND LIGHTS WHEN THE ACCIDENT OCCURRED, THE OFFICER WAS STILL ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant police officer (Hurley) was engaged in an emergency operation when the officer’s car struck the plaintiffs’ car as the officer made a turn onto the street where plaintiffs’ car was at a stop sign. Although the officer thought the urgency had diminished and had turned off the siren and lights, he was awaiting word that the emergency was over. The police had been called by a resident who saw someone on her porch who then ran into the woods. Another officer had stopped a man who explained he was looking for his dog. That story was being checked out when the accident occurred:

The fact that Hurley believed the call was no longer a “high” priority and had deactivated the lights and siren on his vehicle does not, as the plaintiffs contend, mean that Hurley was no longer engaged in an emergency operation … . An “emergency operation” is statutorily defined to mean, among other things, “[t]he operation . . . of an authorized emergency vehicle, when such vehicle is . . . responding to . . . the scene of a[ ] . . . police call” (Vehicle and Traffic Law § 114-b … ). Since Hurley was responding to the scene of a police call at the time of the accident, he was engaged in an emergency operation … .

… Hurley was engaged in privileged conduct at the time of the accident, as the driver of an authorized emergency vehicle is permitted to, inter alia, “[d]isregard regulations governing directions of movement” (Vehicle and Traffic Law § 1104[b][4] …). As such, Hurley’s conduct was governed by the reckless disregard standard … .

The reckless disregard standard “demands more than a showing of a lack of due care under the circumstances’—the showing typically associated with ordinary negligence claims. It requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” … . “This standard requires a showing of more than a momentary lapse in judgment” … . Here, although Hurley’s conduct may have constituted a momentary lapse in judgment, it did not rise to the level of reckless disregard for the safety of others … . Proce v Town of Stony Point, 2020 NY Slip Op 04195, Second Dept 7-22-20

 

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MOTION TO AMEND THE SUMMONS AND COMPLAINT TO ADD AN APPARENTLY MISNAMED PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the summons and complaint to add an apparently misnamed party after the statute of limitations had run should not have been granted:

On March 27, 2014, the plaintiff allegedly was injured while boarding a ski lift at Hunter Mountain in Hunter. On March 23, 2016, the plaintiff commenced this action against the defendants, Hunter Mountain and Hunter Mountain Resort, LLC, to recover damages for personal injuries. After the defendants failed to appear or answer the complaint, a default judgment dated April 18, 2018, was entered against the defendants. By notice of motion dated September 15, 2018, the plaintiff moved, inter alia, in effect, pursuant to CPLR 305(c) and 3025(b) for leave to amend the summons, complaint, and caption to name Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain (hereinafter HMSB), as a defendant instead of the named defendant Hunter Mountain. …

Relief pursuant to CPLR 305(c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed in the original process, and the correct defendant would not be prejudiced by the granting of the amendment … . While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served … .

… There is no evidence that HMSB and Hunter Mountain are one and the same entity … . … [T]he plaintiff failed to establish that he properly served HMSB or that the Supreme Court obtained jurisdiction over it … .

… [T]he plaintiff was not entitled to relief pursuant to CPLR 3025(b) for leave to amend the summons, complaint, and caption to add HMSB as a defendant, since he did not provide a copy of his proposed amended summons and complaint, … . The proposed amendments are patently devoid of merit because the statute of limitations bars any claim against HMSB, a new party to this action … , and the plaintiff failed to establish that the relation-back doctrine pursuant to CPLR 203(f) applied … . Nossov v Hunter Mtn., 2020 NY Slip Op 04175, Second Dept 7-22-20

 

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A CORRECTION LAW PROVISION INSULATED THE PETITIONER-INMATE FROM DISCIPLINE FOR SENDING A LETTER REQUESTING AN INSTITUTIONAL POLICY CHANGE REGARDING VENDORS WHICH SUPPLY PACKAGES TO PRISONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-inmate should not have been disciplined for a letter to vendors which supply packages to prisons. Petitioner was opposed to a pilot program awarding eight vendors the exclusive right to supply packages to prisons. Petitioner sent a letter urging excluded vendors to “fight back” and was disciplined under a provision of the Institutional Rules of Conduct which prohibits inmates from soliciting goods or services from businesses. The Second Department held that the letter was subject a Correction Law provision which prohibits discipline for requests for policy changes:

… [B]ecause the letter did not solicit goods or services from any business, the record does not support the hearing officer’s determination that rule 103.20 (7 NYCRR 270.2[B][4][ii]) was violated. Moreover, even if construed to violate the rule, the petitioner’s conduct was insulated from discipline by Correction Law § 138, which provides that “[i]nmates shall not be disciplined for making written . . . requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution” (Correction Law § 138[4]). The petitioner’s December 15, 2017, letter was a “request[ ] involving a change of institutional . . . policies” (id. ) in that he invited certain organizations adversely affected by the DOCCS’s [NYS Department of Corrections and Community Supervision’s] new policy to undertake action in opposition to that new policy. The respondents thus disciplined the petitioner in contravention of Correction Law § 138(4). Matter of Miller v Annucci, 2020 NY Slip Op 04167, Second Dept 7-22-20

 

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THE PROOF DID NOT SUPPORT SURROGATE’S COURT’S FINDING THAT THERE WAS A CONFIDENTIAL RELATIONSHIP BETWEEN RESPONDENTS AND THE DECEDENT AND THE PROOF DID NOT SUPPORT THE FINDING THAT RESPONDENTS EXERTED UNDUE INFLUENCE UPON DECEDENT (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the evidence did not support the finding that the respondents, decedent’s daughter Ellen and her son, Alex, exerted undue influence upon the decedent. In addition, the proof did not support the finding of a confidential relationship between respondents and the decedent:

Here, although the record establishes that Ellen and Alexander held a position of trust with decedent, and that Ellen assisted decedent with her finances and was named decedent’s power of attorney, the record also reflects that, despite Ellen’s position of trust, decedent was actively and personally involved in managing her real estate and in drafting her estate plan, and that she directed her personal attorney and the branch manager at her bank to act according to her own desires based on her own personal, stated reasons. …

Here, the record reflects that Ellen and Alexander wanted to benefit from decedent’s estate, and that Ellen assisted decedent in executing the relevant estate plan and making the disputed transactions. The relevant inquiry, however, is not what Ellen and Alexander may have wanted, asked for, or facilitated, but rather whether decedent’s free will, independent action, and self-agency were overcome by their conduct … . In this case, the record establishes that decedent informed her attorney in 2011 that she did not want petitioner to have any further power over her affairs, that decedent thereafter worked with her attorney directly in order to revise her estate plan, and that decedent discussed with her attorney her personal reasons for altering her prior estate plan to the exclusion of petitioner. Indeed, decedent’s attorney testified that he never prepared a document that decedent did not personally authorize, and testimony from numerous non-beneficiaries established decedent’s capacity and active management of her own affairs during the relevant time frame, albeit with the assistance of Ellen. Simply put, the record does not reflect that decedent at any time lost her free will or agency, and instead the record reflects that she took the disputed actions based on her stated personal motives. Matter of Kotsones, 2020 NY Slip Op 04102, Fourth Dept 7-17-20

 

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