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DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT).

The Third Department, reversing County Court, determined County Court should have inquired into defense counsel’s apology for his behavior which may have caused the People to withdraw a more favorable plea offer:

County Court failed to take appropriate action in response to defense counsel’s disclosures. Initially, County Court failed to recognize that defense counsel’s statements disqualified him from continuing to represent defendant, particularly if defense counsel were required to provide testimony regarding the events that allegedly took place on the preceding Friday… . Accordingly, when presented with defense counsel’s statements, County Court should have immediately explained the situation to defendant and adjourned the matter to allow for the substitution of counsel.

Following substitution of counsel, County Court should have conducted a hearing to determine whether defendant received the ineffective assistance of counsel during the plea negotiation process and, thus, was entitled to an order directing the People to reoffer the more favorable plea offer that was allegedly available on the preceding Friday… . County Court, however, failed to appreciate that, if defendant made the requisite showing at that hearing, it could in its discretion direct the People to reoffer the prior, more favorable plea, if it was in fact made… . Indeed, a court may direct the People to reoffer a prior, more favorable plea offer on ineffective assistance of counsel grounds only if a defendant demonstrates (1) the existence of a prior, more favorable plea offer, (2) a reasonable probability that, but for defense counsel’s conduct, he or she would have accepted the prior plea offer, (3) a reasonable probability that the agreement would have been presented to and accepted by the court and (4) that the conviction and/or sentence under the terms of the plea offer would have been less severe than the conviction and sentence ultimately imposed … . County Court did not afford defendant the opportunity to make this showing here. Rather, it repeatedly misinformed defendant that it could not direct the People to reoffer the prior plea offer and that defendant could either take a new plea offer or go to trial. It is under these circumstances that defendant accepted the later plea offer and entered the underlying guilty plea. Therefore, we reverse the judgment of conviction and remit the matter for substitution of defense counsel and further proceedings. People v McGee, 2018 NY Slip Op 08203, Third Dept 11-29-18

CRIMINAL LAW (DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))/PLEA OFFERS (CRIMINAL LAW, DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))

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NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, ordering the resentencing of defendant, determined the defendant’s prior New Jersey forged instrument conviction was not the equivalent of a New York felony and therefore could not be the basis of second felony offender status:

The first mens rea element of both New York and New Jersey’s crime of uttering a forged instrument are the same: that the defendant had knowledge that the subject instrument was forged. However, the second mens rea element of the New Jersey crime of uttering a forged instrument is broader than the second mens rea element of the New York crime of uttering a forged instrument. Because the New Jersey statute uses the disjunctive “or,” the second mens rea element of the NJ crime of uttering a forged instrument can be satisfied in two different ways: that one who utters a forged instrument must act either with the intent to defraud (purpose to defraud or injure anyone) or with the knowledge that one is facilitating a fraud. By contrast, the second mens rea element of the New York crime of uttering a forged instrument can be satisfied only one way: that the person who utters a forged instrument acted with the “intent to defraud.” Since the New Jersey statute punishes a broader range of mental states than its New York counterpart, it fails New York’s strict equivalency test … . People v Allison, 2018 NY Slip Op 08194, First Dept 11-29-18

CRIMINAL LAW (NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT))/SENTENCING (NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT))/SECOND FELONY OFFENDER  (NEW JERSEY FORGED INSTRUMENT CONVICTION WAS NOT THE EQUIVALENT OF A NEW YORK FELONY AND SHOULD NOT HAVE BEEN THE BASIS OF SECOND FELONY OFFENDER STATUS (FIRST DEPT))

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JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER A LESSER INCLUDED OFFENSE AND AN ADVERSE INFERENCE INSTRUCTION SHOULD HAVE BEEN GIVEN CONCERNING SURVEILLANCE PHOTOS DESTROYED BY THE POLICE, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the jury should have been instructed to consider a lesser included offense and an adverse inference instruction should have been given concerning photographs destroyed by the police:

The court’s first-degree robbery charge, consistent with the indictment, required the People to prove that defendant used or threatened to use a knife; it is undisputed that a finding that defendant wielded some weapon or object other than a knife would not support first-degree robbery in this case. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that he forcibly stole property from the victim, but did not use or threaten to use a knife in the course of doing so… . On the facts presented, the jury could have reasonably reached these findings by generally crediting the victim’s account, but finding that her testimony about seeing defendant using a knife was mistaken. Moreover, while this circumstance is not controlling, we note that the People joined in defendant’s request for submission of third-degree robbery.

… [T]the court should also have granted defendant’s request for an adverse inference charge as to surveillance photos taken in the victim’s livery cab after other photos, introduced at trial, were taken. The photos in evidence showed defendant in the back seat before he left and allegedly returned to rob the driver. The Police Department collected the photos but destroyed all but a few of them, which were introduced at trial through a detective who alleged that other members of his team selected them as the most relevant. Defendant established that the missing photos were “reasonably likely to be material” … , since they might have shown what type of weapon or object was used by the perpetrator. The record fails to support the People’s assertion that the camera could not have recorded the incident … . People v Holmes, 2018 NY Slip Op 08178, First Dept 11-29-18

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER A LESSER INCLUDED OFFENSE AND AN ADVERSE INFERENCE INSTRUCTION SHOULD HAVE BEEN GIVEN CONCERNING SURVEILLANCE PHOTOS DESTROYED BY THE POLICE, CONVICTION REVERSED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER A LESSER INCLUDED OFFENSE AND AN ADVERSE INFERENCE INSTRUCTION SHOULD HAVE BEEN GIVEN CONCERNING SURVEILLANCE PHOTOS DESTROYED BY THE POLICE, CONVICTION REVERSED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER A LESSER INCLUDED OFFENSE AND AN ADVERSE INFERENCE INSTRUCTION SHOULD HAVE BEEN GIVEN CONCERNING SURVEILLANCE PHOTOS DESTROYED BY THE POLICE, CONVICTION REVERSED (FIRST DEPT))/LESSER INCLUDED OFFENSE (JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER A LESSER INCLUDED OFFENSE AND AN ADVERSE INFERENCE INSTRUCTION SHOULD HAVE BEEN GIVEN CONCERNING SURVEILLANCE PHOTOS DESTROYED BY THE POLICE, CONVICTION REVERSED (FIRST DEPT))/ADVERSE INFERENCE (DESTRUCTION OF PHOTOS, CRIMINAL LAW, (JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER A LESSER INCLUDED OFFENSE AND AN ADVERSE INFERENCE INSTRUCTION SHOULD HAVE BEEN GIVEN CONCERNING SURVEILLANCE PHOTOS DESTROYED BY THE POLICE, CONVICTION REVERSED (FIRST DEPT))

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INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the school district’s motion for summary judgment in this negligent supervision, student injury case should not have been granted. Infant plaintiff was playing touch football during recess in a designated area near the playground. The student was injured when, outside the designated area, he dove to catch the ball and struck a piece of playground equipment:

… [T]he defendants failed to meet their prima facie burden of demonstrating that the risk of colliding into the playground equipment located near the edge of the field was inherent in the activity of playing touch football on the field. Although the risks inherent in a sport include those “associated with the construction of the playing surface and any open and obvious condition on it” … , the playground equipment was not a part of the football field or related to the game… . Accordingly, the defendants failed to establish, prima facie, that their alleged negligent supervision in permitting the students to play football near the playground did not “create[ ] a dangerous condition over and above the usual dangers that are inherent in the sport” … . In addition, while the infant plaintiff was a willing participant in the game, in light of his age, it cannot presently be determined as a matter of law that he was aware of and appreciated the risks involved in the activity in which he was engaged … .

Further, the defendants failed to establish, prima facie, that the infant plaintiff’s accident occurred in so short a span of time that even the most intense supervision could not have prevented it, thereby negating any alleged lack of supervision as the proximate cause of the infant plaintiff’s injuries … . Rather, there is a triable issue of fact as to whether the infant plaintiff “was participating in a prohibited activity for an extended period of time and more intense supervision may have prevented the accident” … . M.P. v Mineola Union Free Sch. Dist., 2018 NY Slip Op 08119, Second Dept 11-28-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ASSUMPTION OF THE RISK (EDUCATION-SCHOOL LAW, INFANT PLAINTIFF WAS INJURED DURING RECESS WHEN, PLAYING FOOTBALL OUTSIDE THE DESIGNATED FOOTBALL AREA, HE DOVE FOR THE BALL AND STRUCK A PIECE OF PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY (SECOND DEPT).

The Second Department affirmed the defense jury verdict in a case preceded by defendant’s guilty plea to endangering the welfare of an incompetent or physically disabled person. It was alleged that defendant (Tiger), a nurse, scalded a 10-year-old severely disabled child (Alejandra) by bathing the child in hot water. After defendant pled guilty she moved set aside her conviction and submitted evidence the child suffered an allergic reaction which was misinterpreted as skin burns. The Appellate Division granted the motion to set aside the conviction. The Court of Appeals reversed, ruling that the “actual innocence” defense is not available after a guilty plea. In the subsequent civil trial, plaintiff had brought a motion in limine requesting that the guilty plea be given collateral estoppel effect and that the defendant be prohibited from presenting evidence of the allergic reaction. Supreme Court essentially granted the motion but allowed cross-examination of the plaintiff’s experts about the allergic reaction. The Second Department determined the motion in limine was actually an untimely motion for summary judgment. But in light of the defense verdict, no further action by the appellate court was necessary:

During the trial in this action, the defendants sought to establish that Alejandra’s injuries were not caused by scalding water, relying upon medical records and cross-examining the plaintiff’s expert witnesses as to whether Alejandra’s injuries were the result of toxic epidermal necrolysis (hereinafter TEN), a type of severe skin reaction, purportedly caused by a drug Alejandra had been prescribed prior to the incident in question. Of note, Alejandra’s skin was biopsied at the hospital one day after the incident, and a pathology report, which the defendants did not discover until very late during the litigation, concluded that the biopsy was, inter alia, consistent with a diagnosis of TEN. Tiger has sought to set aside her conviction based upon, inter alia, the conclusions asserted in the belatedly discovered pathology report … . …

The plaintiff contends that the Supreme Court failed to give the criminal plea proper collateral estoppel effect and that the sole question for the jury should have been the amount of damages. On the eve of trial, the plaintiff sought an in limine ruling, based upon the doctrine of collateral estoppel, that Tiger’s criminal plea conclusively established that she was negligent as a matter of law and that her negligence proximately caused Alejandra’s injuries. Further, the plaintiff argued that the defendants should be precluded from introducing any evidence that Alejandra’s injuries were caused by TEN. The court, in effect, granted the plaintiff’s application in part, by submitting only the question of proximate cause to the jury and, thus, in effect, awarding the plaintiff judgment as a matter of law on the issue of Tiger’s negligence. The court further ruled that the defendants were precluded from introducing evidence regarding TEN in their case-in-chief, but permitted them to cross-examine the plaintiff’s experts regarding the medical records concluding that Alejandra’s injuries were caused by TEN.

We agree with the defendants’ contention that the plaintiff’s pretrial application, characterized as one for in limine relief, was the functional equivalent of an untimely motion for summary judgment on the issue of liability … . “[A] motion in limine is an inappropriate substitute for a motion for summary judgment” … . Further, “in the absence of any showing of good cause’ for the late filing of such a motion (CPLR 3212[a]) the Supreme Court should have denied the motion”… . We note that, in light of the verdict in favor of the defendants, we do not otherwise review the propriety of the court’s ruling on the plaintiff’s in limine application. Farias-Alvarez v Interim Healthcare of Greater N.Y., 2018 NY Slip Op 08115, Second Dept 11-28-18

NEGLIGENCE (DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY  (SECOND DEPT))/CIVIL PROCEDURE (DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY  (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY  (SECOND DEPT))

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CRITERIA FOR INTERPRETING AN EXPRESS EASEMENT AND A PRESCRIPTIVE EASEMENT EXPLAINED, PARTY PROPERLY SANCTIONED FOR COUNSEL’S FILING AN AMENDED COMPLAINT DIFFERENT FROM THE COMPLAINT APPROVED BY THE COURT (SECOND DEPT).

The Second Department determined that neither plaintiff nor defendants were entitled to summary judgment in this dispute over an plaintiff’s ingress and egress easement over defendants’ land. The court explained the criteria for interpretation of an express easement and a prescriptive easement. The court noted that plaintiff was properly sanctioned for her counsel’s conduct in filing an amended complaint which differed from the complaint approved by the court:

,,, [T]he plaintiff moved for summary judgment on the amended complaint, arguing, in effect, that the language of the express easement should be amended to include certain curves in the right of way that were necessary to permit utility and delivery trucks to access the plaintiff’s property. The plaintiff argued that she had obtained a prescriptive easement over the portions of the defendants’ property which underlaid the proposed curves. The defendants cross-moved for summary judgment declaring that the plaintiff was not entitled to an expansion of the easement, by prescription or otherwise. …

“Easements by express grant are construed to give effect to the parties’ intent, as manifested by the language of the grant” … . “The extent of an easement claimed under a grant is generally limited by the language of the grant, as a grantor may create an extensive or a limited easement”… . “Where, as here, an easement provides for the ingress and egress of motor vehicles, it is granted in general terms and the extent of its use includes any reasonable use necessary and convenient for the purpose for which it is created'” … .

“An easement by prescription may be demonstrated by clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period” … . DiDonato v Dyckman, 2018 NY Slip Op 08113, Second Dept 11-28-18

REAL PROPERTY LAW (EASEMENTS, CRITERIA FOR INTERPRETING AN EXPRESS EASEMENT AND A PRESCRIPTIVE EASEMENT EXPLAINED, PARTY PROPERLY SANCTIONED FOR COUNSEL’S FILING AN AMENDED COMPLAINT DIFFERENT FROM THE COMPLAINT APPROVED BY THE COURT (SECOND DEPT))/EXPRESS EASEMENTS ( CRITERIA FOR INTERPRETING AN EXPRESS EASEMENT AND A PRESCRIPTIVE EASEMENT EXPLAINED, PARTY PROPERLY SANCTIONED FOR COUNSEL’S FILING AN AMENDED COMPLAINT DIFFERENT FROM THE COMPLAINT APPROVED BY THE COURT (SECOND DEPT))/PRESCRIPTIVE EASEMENTS (CRITERIA FOR INTERPRETING AN EXPRESS EASEMENT AND A PRESCRIPTIVE EASEMENT EXPLAINED, PARTY PROPERLY SANCTIONED FOR COUNSEL’S FILING AN AMENDED COMPLAINT DIFFERENT FROM THE COMPLAINT APPROVED BY THE COURT (SECOND DEPT))/ATTORNEYS (SANCTIONS, ATTORNEY’S FEES, PARTY PROPERLY SANCTIONED FOR COUNSEL’S FILING AN AMENDED COMPLAINT DIFFERENT FROM THE COMPLAINT APPROVED BY THE COURT (SECOND DEPT))

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EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department determined the exception to the mootness doctrine did not apply and the Department of Health’s (DOH’s) motion to dismiss causes of action pursuant to the Americans with Disabilities Act and the Rehabilitation Act should have been granted. The underlying action was brought by disabled residents of an adult-care facility which was being closed. The matter settled and the facility closed rendering further proceedings academic. Supreme Court had held that the state claims were moot, but the federal claims were viable under an exception to the mootness doctrine:

The exception to the mootness doctrine does not apply here. That exception permits a court to pass on moot issues when there exists: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . If one or more of these elements is missing, the exception does not apply… .

Here, there is no likelihood of repetition because the issues are fact-specific … . Furthermore, because the issues are fact-specific, they are not substantial and novel … .

The plaintiffs contend that their federal law causes of action are not fact-specific, in that they challenge the validity of the regulations pursuant to which the DOH approves of any closure plan for an assisted living residence … . The plaintiffs contend that the regulations themselves violate the mandate in the ADA and Rehabilitation Act that services be administered in the most integrated setting appropriate to the needs of the resident … . However, this facial challenge to the DOH’s closure regulations is time-barred … .

The issues presented here also do not typically evade review… . An injunction maintaining the status quo was an effective procedure here and would be in a future case raising similar issues. The issues here only became moot when the plaintiffs voluntarily opted to settle their claims against the LLC … . Berger v Prospect Park Residence, LLC, 2018 NY Slip Op 08110, Second Dept 11-28-18

CIVIL PROCEDURE (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT))/ADMINISTRATIVE LAW  (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT))/APPEALS (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT))/EXCEPTION TO THE MOOTNESS DOCTRINE (EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY AFTER THE UNDERLYING ACTION WAS SETTLED, CRITERIA EXPLAINED (SECOND DEPT)

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PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. The mortgage included conditions precedent to the acceleration of the debt and plaintiff’s papers did not demonstrate satisfaction of the conditions precedent:

The mortgage required that the lender give notice of a date by which the borrower must correct a default in order to avoid acceleration. It further required that the date specified in the notice “be at least 30 days from the date on which the notice is given.” The mortgage also provided that notice by first-class mail “is considered given” on the date mailed.

In support of its motion for summary judgment, the plaintiff failed to establish, prima facie, that it complied with this condition precedent to accelerating the mortgage. Specifically, in support of its motion for summary judgment, the plaintiff presented conflicting evidence as to whether it mailed the notice at least 30 days before the date specified in that notice. Inasmuch as the plaintiff’s own evidence submitted in support of the motion demonstrated the existence of a triable issue of fact as to whether the plaintiff complied with the 30-day notice provision, the plaintiff’s motion should have been denied without regard to the sufficiency of the defendant’s opposition papers … . Wilmington Sav. Fund Socy. FSB v Yisroel, 2018 NY Slip Op 08174, Second Dept 11-28-18

FORECLOSURE (PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (FORECLOSURE, (PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, PLAINTIFF DID NOT DEMONSTRATE THE CONDITIONS PRECEDENT TO THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN SATISFIED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the action stemming from plaintiff church’s defrocking and ejecting defendant nun from a convent was not justiciable in the New York courts because inquiry into religious doctrine or practice was required. Defendant nun had complained about sexual harassment by a priest and alleged she was retaliated against by the plaintiff church:

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” … . A court may, however, properly preside over a dispute involving a religious body only when the dispute may be resolved utilizing neutral principles of law … .

Here, the summary proceedings for eviction and the action, inter alia, for ejectment are inextricably intertwined with the determinations of the ecclesiastical court, particularly its 2008 determination defrocking the defendant and ordering her to vacate the convent. Therefore, this consolidated action involves review of an ecclesiastical determination that may not be resolved by resort to neutral principles of law … . Moreover, this matter does not involve a purely religious determination requiring this Court to accept the actions of the ecclesiastical court as final and binding … . Russian Orthodox Convent Novo-Diveevo, Inc. v Sukharevskaya, 2018 NY Slip Op 08167, Second Dept 11-28-18

RELIGION (DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/CIVIL PROCEDURE (RELIGION, (DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/FIRST AMENDMENT (RELIGION, DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))

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CORPORATE OFFICER WHO SIGNED THE CONTRACT AT ISSUE WAS NOT UNITED IN INTEREST WITH THE CORPORATION, THEREFORE THE ATTEMPT TO ADD AN UNTIMELY FRAUD CAUSE OF ACTION AGAINST THE OFFICER WAS NOT POSSIBLE UNDER THE RELATION BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the relation back doctrine did not apply to an attempt to amend the answer to add a fraud cause of action against Tam, an officer of plaintiff corporation, because Tam and the corporation were not united in interest. Tam had signed the contract at issue as an officer, not in his individual capacity:

” The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well'” … . The original counterclaim asserted against the plaintiff alleged that plaintiff breached contractual obligations for which Tam—an officer of the corporation—was not individually liable … . “There is no legal theory of vicarious liability for breach of contract” by “an agent of a disclosed principal” … . Tam, when signing the contract in issue, did so as president of the plaintiff, and not individually. Therefore, the cross movants are not united in interest. Further, since Tam signed the contract, [defendant] was aware of Tam’s identity at the time the original answer was served. Therefore, failure to join Tam cannot be attributable to a mistake as to the identity of the proper parties … . Thus, the addition of Tam as a party to this action was improper. Roco G.C. Corp. v Bridge View Tower, LLC, 2018 NY Slip Op 08164, Second Dept 11-28-18

CIVIL PROCEDURE (RELATION BACK DOCTRINE, CORPORATE OFFICER WHO SIGNED THE CONTRACT AT ISSUE WAS NOT UNITED IN INTEREST WITH THE CORPORATION, THEREFORE THE ATTEMPT TO ADD AN UNTIMELY FRAUD CAUSE OF ACTION AGAINST THE OFFICER WAS NOT POSSIBLE UNDER THE RELATION BACK DOCTRINE (SECOND DEPT))/RELATION BACK DOCTRINE ( FRAUD CAUSE OF ACTION AGAINST THE OFFICER WAS NOT POSSIBLE UNDER THE RELATION BACK DOCTRINE (SECOND DEPT))/CORPORATION LAW (RELATION BACK DOCTRINE, CORPORATE OFFICER WHO SIGNED THE CONTRACT AT ISSUE WAS NOT UNITED IN INTEREST WITH THE CORPORATION, THEREFORE THE ATTEMPT TO ADD AN UNTIMELY FRAUD CAUSE OF ACTION AGAINST THE OFFICER WAS NOT POSSIBLE UNDER THE RELATION BACK DOCTRINE (SECOND DEPT))/UNITED IN INTEREST  (RELATION BACK DOCTRINE, CORPORATE OFFICER WHO SIGNED THE CONTRACT AT ISSUE WAS NOT UNITED IN INTEREST WITH THE CORPORATION, THEREFORE THE ATTEMPT TO ADD AN UNTIMELY FRAUD CAUSE OF ACTION AGAINST THE OFFICER WAS NOT POSSIBLE UNDER THE RELATION BACK DOCTRINE (SECOND DEPT))

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