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UNSIGNED DEPOSITIONS WERE ADMISSIBLE AND EVIDENCE SUBMITTED IN REPLY SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, although affirming the denial of defendants’ motion for summary judgment in this slip and fall case on other grounds, noted that the depositions were admissible and evidence submitted in reply should have been considered:

Although the plaintiff’s deposition transcript, which the defendants submitted in support of their motion, was unsigned, it was nonetheless admissible as the plaintiff raised no objection to its submission or accuracy and, in fact, requested that the Supreme Court “incorporate” his transcript into his opposition … . Regarding the deposition transcript of the decedent’s niece, which the defendants also submitted in support of their motion, the defendants demonstrated that they had submitted the unsigned transcript to the decedent’s niece for review, but that she failed to sign and return it within 60 days. Thus, the niece’s deposition transcript could have been used by the defendants as fully as though signed (see CPLR 3116[a] …). Furthermore, even though the evidence demonstrating the defendants’ compliance with CPLR 3116(a) was submitted by the defendants in reply, the court should have considered it, because it was in direct response to allegations raised for the first time in the plaintiff’s opposition papers … . The unsigned deposition transcript of the defendants’ property manager was admissible under CPLR 3116(a) since it was submitted by the defendants themselves and thus adopted as accurate … . Baptiste v Ditmas Park, LLC, 2019 NY Slip Op 02844, Second Dept 4-17-19

 

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DENIAL OF DEFENDANT’S MOTION TO VACATE HIS DEFAULT IN THIS FORECLOSURE ACTION DID NOT PRECLUDE DEFENDANT’S MOTION TO DISMISS BASED UPON PLAINTIFF BANK’S FAILURE TO MOVE FOR A JUDGMENT OF FORECLOSURE WITHIN ONE YEAR AS REQUIRED BY KINGS COUNTY LOCAL RULE 8 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the denial defendant’s motion to vacate a default judgment did not preclude defendant’s motion to dismiss the foreclosure action based upon plaintiff bank’s failure to comply with Rule 8 (Kings County Supreme Court Uniform Civil Rules) :

In August 2013, the plaintiff commenced this mortgage foreclosure action against the defendant Andy McAlpin (hereinafter the defendant) and others. The defendant did not answer or appear in the action, and in February 2014, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. In an order dated October 24, 2014, the Supreme Court granted the plaintiff’s motion. The plaintiff did not move for a judgment of foreclosure and sale, and in May 2016, the defendant moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the order of reference and to dismiss the complaint insofar as asserted against him on the ground that he had not been served with the summons and complaint, for leave to serve a late answer, and to dismiss the complaint on the ground that the plaintiff failed to comply with Part F, rule 8, of the Kings County Supreme Court Uniform Civil Term Rules (hereinafter Rule 8). Rule 8 requires a plaintiff in a foreclosure action to file a motion for a judgment of foreclosure within one year of entry of the order of reference. …

Contrary to the Supreme Court’s determination, the defendant was not precluded from seeking relief under Rule 8 by the denial of that branch of his motion which was to vacate his default … . Bank of Am., N.A. v McAlpin,b2019 NY Slip Op 02843, Second Dept 4-17-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION FOR NEGLECT TO PROSECUTE WITHOUT MEETING THE REQUIREMENTS OF CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the case for neglect to prosecute in the absence of the prerequisites mandated by CPLR 3216:

… [T]he court directed the plaintiff to file a note of issue within 90 days, and warned that “[i]f plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court (CPLR 3216).” Five months later … the court, sua sponte, in effect, directed dismissal of the action … . …

“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” … . “Effective January 1, 2015, the Legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216” … . One such precondition is that where, as here, a written demand to resume prosecution of the action is made by the court, “the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Here, the certification order did not set forth any specific conduct constituting neglect by the plaintiff … .

Additionally, before issuing an order dismissing the case based on a party’s failure to comply with the 90-day demand, the court must give the party notice so that the party has an opportunity to “show a justifiable excuse for the delay and a good and meritorious cause of action” … . Here, the Supreme Court failed to give the parties notice and an opportunity to be heard prior to, in effect, directing dismissal of the action pursuant to CPLR 3216 … . Sadowski v W. David Harmon, 2019 NY Slip Op 02918, Second Dept 4-17-19

 

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DEFENDANT STORE DEMONSTRATED IT TOOK ADEQUATE MEASURES TO MOP UP RAIN WATER IN THIS SLIP AND FALL CASE, THE STORE’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant store (7-Eleven) demonstrated it took adequate steps to mop up rain water in this slip and fall case. The store’s motion for summary judgment was properly granted:

It is undisputed that it was raining heavily on the day of the accident, and that there was a mat just inside the front entrance to the store. Said testified at her deposition that store employees were instructed to dry-mop water from the floor every 15 minutes on days it rained. At his deposition, one of Said’s employees testified that he mopped water as soon as he observed it. Moreover, the evidence submitted in support of the defendants’ motion demonstrated that the employee dry-mopped the area of the floor where the injured plaintiff allegedly fell approximately 15 to 25 minutes before the accident occurred. Said and her employees were not obligated to provide a constant remedy to the problem of water being tracked into the store in rainy weather … . Further, the defendants demonstrated that the condition was not present for a sufficient period of time for the defendants to have discovered and remedied it, and therefore, there is no basis for an inference that they had constructive notice … . Radosta v Schechter, 2019 NY Slip Op 02916, Second Dept 4-17-19

 

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911 CALL PROPERLY ADMITTED AS PRESENT SENSE IMPRESSION OR EXCITED UTTERANCE, DEFENDANT PROPERLY GIVEN CONSECUTIVE SENTENCES FOR WOUNDING ONE VICTIM WITH THE INTENT TO SHOOT ANOTHER VICTIM (SECOND DEPT).

The Second Department determined a 911 recording was properly admitted under the present-sense-impression and excited-utterance exceptions to the hearsay rule and defendant was properly sentenced to consecutive sentences where, intending to shoot one victim, another victim was also hit:

We agree with the Supreme Court’s determination allowing the admission of a recording of a call to the 911 emergency number made by the father of the then-15-year-old victim. The record established that the declarant made the call within seconds of the shooting after his son cried out that he had been shot, and the father saw his neighbor, who was also shot and who the father thought was dying, fall to the ground in a pool of blood. Although the declarant’s statements to the 911 operator were hearsay, they were nevertheless admissible under the exception for excited utterances ” made contemporaneously or immediately after a startling event'” … or present sense impressions made while he was “perceiving the event as it is unfolding or immediately afterward” which are “corroborated by independent evidence establishing [their] reliability” … . …

… [T]he defendant fired multiple shots with the intent of hitting the older victim and one of those shots hit the 15-year-old victim. However, “[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent” … . The shots which hit the two victims “were the result of separate and distinct acts of pulling a trigger to discharge a firearm” and “repetitive discrete acts, such as successive shots . . . [do not] somehow merge such that they lose their individual character where the same criminal intent . . . inspir[es] the whole transaction” … . Accordingly, the imposition of consecutive sentences for the two counts of attempted murder in the second degree was legal. People v Smith, 2019 NY Slip Op 02911, Second Dept 4-17-19

 

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RECORDS KEPT BY A VOLUNTEER AMBULANCE NOT-FOR-PROFIT CORPORATION NOT SUBJECT TO DISCLOSURE PURSUANT TO THE FREEDOM OF INFORMATION LAW (FOIL) BECAUSE THE CORPORATION IS NOT A GOVERNMENTAL ENTITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, Volunteer Ambulance, a not-for-profit corporation, was not a government agency, and therefore was not subject to the Freedom of Information Law (FOIL) (Public Officers Law 86). “The petitioner, an emergency medical technician, made requests under the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) for the production of certain records pertaining to the rejection of her application to be reinstated as a member of the Cortlandt Community Volunteer Ambulance Corps, Inc. (hereinafter Volunteer Ambulance):”

Volunteer Ambulance was formed and incorporated without any participation or assistance of public officials in the Town. Neither the Town nor the District has the authority to select or appoint directors, officers, or members of Volunteer Ambulance. Volunteer Ambulance is not required to submit its budget to the Town or District for review, and neither the Town nor the District has authority to approve Volunteer Ambulance’s budget. Neither the Town nor the District has any authority to review or audit Volunteer Ambulance’s financial books and records. Volunteer Ambulance receives the majority of its funding from sources other than the payment it receives from the District pursuant to the contract, and purchases all of its equipment, supplies, and services from its own assets. Volunteer Ambulance receives no funding from the Town or District apart from the contract payment. Volunteer Ambulance is solely responsible for the maintenance and expenses related to its buildings. Volunteer Ambulance has the authority to hire staff, who are employees of Volunteer Ambulance, not of the District or Town, and it obtains its own workers’ compensation policy for coverage of its employees and members; these persons are not covered by the workers’ compensation policy maintained by the District or the Town for its employees or volunteers. Neither the District nor the Town has authority to review or approve contracts entered into by Volunteer Ambulance for professional or other services necessary for its operation.

Under these circumstances, it cannot be said that Volunteer Ambulance is a “governmental entity performing a governmental . . . function” so as to render it an agency subject to the mandates of FOIL (Public Officers Law § 86[3] … . Matter of Outhouse v Cortlandt Community Volunteer Ambulance Corps, Inc., 2019 NY Slip Op 02881, Second Dept 4-17-19

 

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RECORDS OF COMPLAINTS ABOUT A FORMER DETECTIVE MADE TO THE CIVILIAN COMPLAINT REVIEW BOARD (CCRB) PROTECTED FROM DISCLOSURE BY THE CIVIL RIGHTS LAW (SECOND DEPT).

The Second Department determined the records of complaints about a now-retired detective (Scarcella) made to the Civilian Complaint Review Board (CCRB) were protected by Civil Rights Law 50-a and not subject to disclosure pursuant to the Freedom of Information Law (FOIL) (Public Officers Law 87):

The CCRB’s records of civilian complaints, “regardless of where they are kept,” could be used to harass or embarrass police officers, which is exactly what Civil Rights Law § 50-a was intended to prevent … . Indeed, the Court of Appeals has recently held that disciplinary records arising from civilian complaints against police officers are the very sort of record presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law § 50-a … . …

A retired police officer might “still [be] involved in an open or pending case and . . . , in that context, the requested documents have the potential to be used to degrade, harass, embarrass or impeach his integrity” … . Here, the petitioner’s own submissions show that Scarcella has been called to testify numerous times since his retirement. The CCRB met its burden of showing a substantial and realistic potential for the abusive use of the requested material against Scarcella … . Matter of Hughes Hubbard & Reed, LLP v Civilian Complaint Review Bd., 2019 NY Slip Op 02875, Second Dept 4-17-19

 

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EQUITABLE ESTOPPEL DOCTRINE PROPERLY APPLIED TO FIND THAT THE FORMER SAME-SEX DOMESTIC PARTNER HAD STANDING TO SEEK CUSTODY AND VISITATION RE: CHILDREN BORN DURING THE RELATIONSHIP, PRESUMPTION OF LEGITIMACY RE: A CHILD CONCEIVED WHEN THE BIOLOGICAL MOTHER WAS PREVIOUSLY MARRIED WAS REBUTTED (SECOND DEPT).

The Second Department determined that Family Court properly applied the doctrine of equitable estoppel and the presumption of legitimacy was rebutted in this same-sex domestic-partner case. The biological mother (Perperis) and her domestic partner (Chimienti) were together when both children were born and the relationship lasted three years. The older of the two children was conceived when the biological mother was married, but the couple had separated before the baby was born (followed by divorce):

On March 5, 2018, Nicole Perperis, the biological mother of the two subject children, who were born, via artificial insemination, in September 2014 and May 2016, respectively, entered into a consent order of custody and parenting time (hereinafter the consent order) with her former domestic partner, Jennifer Chimienti. Pursuant to the consent order, the parties agreed to share joint custody of the children, with physical custody and final decision-making authority to Perperis. The consent order also set forth a parenting time schedule for Chimienti. The parties entered into the consent order, forgoing a hearing on the best interests of the children as to custody and parental access, upon the determination of the Family Court in an order … (hereinafter the September 2017 order), made after a hearing at which Chimienti’s standing to seek custody or visitation was contested, that Chimienti established standing, via equitable estoppel, to seek custody of or visitation with the children. …… .[W]e agree with the Family Court that … the appropriate analysis to decide whether Chimienti had standing to seek custody of and visitation with the children is to apply an equitable estoppel analysis. …

… .[W]e agree with the Family Court’s determination that, with respect to the older child, the application of an equitable estoppel analysis is not precluded by a legal presumption that the older child, who was born when Perperis was still married to her former wife, is the child of the former wife. We agree with the court’s determination that the marital presumption of legitimacy that typically applies to children born during a marriage (see Domestic Relations Law § 24[1]; Family Ct Act § 417) was rebutted by clear and convincing evidence … . Matter of Chimienti v Perperis, 2019 NY Slip Op 02866, Second Dept 4-17-19

 

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CHILD’S NAME CHANGE TO THE HYPHENATED SURNAMES OF BOTH PARENTS, WHO ARE NOT MARRIED, AFFIRMED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the petition to change the child’s last name was properly granted to the extent that the hyphenated surnames of both parents, who are not married, were assigned to the child:

The parties have joint legal custody and the mother has always had primary physical custody of the child. Because he was overseas on active military duty, the father was not present at the time of the child’s birth. Prior to the child’s birth, however, the father had strongly expressed to the mother that the child should have his surname. Nevertheless, the mother gave the child her surname, Bafumo. The father commenced this proceeding in November 2016 under Civil Rights Law article 6 to change the surname of the child from Bafumo to Weinhofer, his surname. …

A petition to change the surname of a child shall be granted as long as the opposing party does not have a reasonable objection to the proposed name change and “the interests of the [child] will be substantially promoted by the change” (Civil Rights Law § 63). Although it appears that Supreme Court rendered its determination based solely on the second element — whether the child’s interests would be substantially promoted by the name change — given that the record is sufficiently developed as to the first element — whether the mother’s objections to the father’s petition were reasonable — it is unnecessary to remit the matter for a new hearing … . That said, we find that the mother’s objections were not reasonable. Matter of Bafumo, 2019 NY Slip Op 02767, Third Dept 4-10-19

 

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BOARD’S FINDING THAT CLAIMANT FRAUDULENTLY EXAGGERATED THE EFFECTS OF HIS INJURIES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, BOARD’S DETERMINATION REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the finding that claimant fraudulently exaggerated the effects of his injuries was not supported by the record. The Board’s rulings were based upon claimant’s answering calls as a volunteer firefighter and some video surveillance footage. But there was no evidence of what activities claimant engaged in as a volunteer firefighter, and the video evidence was deemed to have been mischaracterized by the Board:

Regarding the video surveillance at a personal injury accident, the Board found that claimant exhibited no apparent difficulty or disability. In the video surveillance, claimant is observed walking around the accident scene; which is not inconsistent with his reports of injury given that he did not need an assistive device to walk but, as noted in his medical records, could walk independently with a mild antalgic gait. Furthermore, any conclusion by the Board that claimant’s movements of his neck, arms and back were inconsistent with his loss of range of motion were not supported by any medical testimony at the hearing and amount to speculation as to whether such movements were inconsistent with the degree of range of motion noted in his medical records. Again, claimant was not in need of any assistive device for his injuries and the degree to which claimant moved his neck, arm and back in the video surveillance, and whether it was inconsistent with his medical records, could not be ascertained without additional medical testimony. …

We also find that the Board mischaracterized the video surveillance depicting claimant “walking into a grocery store . . . and then bending fully at the waist to retrieve a loaf of bread.” Although claimant maintained that his daily living activities had been affected by his injuries, the video did not clearly reflect any heavy lifting or repetitive motion inconsistent with his complaints of pain. Significantly, claimant was deemed totally disabled from performing his job duties as a laborer, but not totally disabled from all activities. It is also noted that the addendum submitted … is factually inaccurate as it incorrectly indicates that claimant is seen “carrying packages” at the grocery store, but the video depicts claimant carrying only a loaf of bread. Matter of Persons v Halmar Intl., LLC, 2019 NY Slip Op 02760, Third Dept 4-11-19

 

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