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QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a concurrence, determined there was a question of fact whether the insurers failed to settle a multi-million dollar medical malpractice claim in bad faith. The facts are interesting but too detailed to fairly summarize here:

To establish bad faith in failing to settle a liability claim, the insured must show that “the insurer’s conduct constituted a ‘gross disregard’ of the insured’s interests — that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer”… . Stated otherwise, the “plaintiff must establish that the defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability than an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted” … . It must be shown that “the insured lost an actual opportunity to settle the claim at a time when all serious doubts about the insured’s liability were removed” … . …[I]t is necessary to consider all the facts and circumstances in gauging whether an insurer acted in bad faith in addressing settlement. Key factors include the plaintiff’s likelihood of success, the potential magnitude of a verdict and the corresponding financial burden on the insured and the information available to the insurer at the time the settlement demand was made … . In reviewing these factors in the procedural context of a motion for summary judgment, we review the evidence in a light most favorable to the nonmoving party … . * * *

It was clear from the inception of this case that if a jury held [the doctor] accountable, the verdict would exceed the total coverage — and that, indeed, was the [plaintiffs’] settlement position throughout. As such, it was incumbent upon [the insurers] to be fully engaged and attentive to the case, particularly after the jury highlighted question No. 6 (re: cost of future care) on the verdict sheet. To suggest that there was not enough time to respond is unpersuasive. This was crunch time, the stakes were unquestionably high and [the insurers] had a contractual responsibility to fulfill.  Healthcare Professionals Ins. Co. v Parentis, 2018 NY Slip Op 07224, Third Dept 10-25-18

INSURANCE LAW (QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT))/BAD FAITH (INSURANCE LAW, QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT))/SETTLEMENTS (INSURANCE LAW, BAD FAITH, QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT))

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ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that, although plaintiff had defaulted on an installment land sale contract (re: the payment of school taxes), defendant was not entitled to specific performance and was not entitled to cancellation of the contract and retention of the installment payments:

“[T]he execution of a[n installment] contract for the purchase of real estate and the making of a part payment gives a contract vendee equitable title to the property and an equitable lien in the amount of the payment” … . The contract vendor, in turn, “holds the legal title in trust for the vendee, subject to the vendor’s equitable lien for the payment of the purchase price in accordance with the terms of the contract” … . “Accordingly, the vendee under a land sale contract has acquired an interest in the property that must be extinguished before the vendor can resume possession, notwithstanding whether a provision in the contract provides that in the event of the vendee’s uncured default . . ., the vendor has the right to declare the contract terminated and repossess the premises. A vendor may not enforce his [or her] rights by an action in ejectment, but must instead proceed to foreclose the vendee’s equitable title or bring an action at law for the purchase price” … .

Plaintiff, having made substantial payments to defendant pursuant to the installment land sale contract at issue, acquired equitable title to the property and an equitable lien in the amount of all payments made pursuant to the contract. Thus, despite plaintiff’s default under the contract, defendant cannot obtain relief under the provision of the rider that provides for cancellation of the contract and forfeiture of all monies paid by plaintiff as liquidated damages… . Accordingly, to the extent that defendant’s motion sought a declaration to that effect, it must be denied. Defendant’s remedies are, instead, limited to foreclosing plaintiff’s equitable title or bringing an action at law for the purchase price of the property, neither of which defendant has sought … . Further, because defendant could not summarily cancel the contract and resume possession, plaintiff is entitled to continued possession of the premises during such time. Cloke v Findlan, 2018 NY Slip Op 07220. Third Dept 10-25-18

REAL ESTATE (ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))/CONTRACT LAW (REAL ESTATE, ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))/DEBTOR-CREDITOR (REAL ESTATE, INSTALLMENT CONTRACT, ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))/INSTALLMENT LAND SALE CONTRACT  (ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT))

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PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT).

The Third Department determined petitioner sex offender was entitled to a Frye hearing to determine the efficacy of an “other specified paraphilic disorder” (OSPD) diagnosis:

… OSPD (nonconsent) is the primary diagnosis upon which respondent relied to demonstrate that petitioner suffered from a mental abnormality under Mental Hygiene Law article 10. Citing the lack of specific diagnostic criteria, petitioner contends that this diagnosis is “junk science” that has not gained general acceptance in the scientific community and, therefore, cannot support a finding of mental abnormality. In support of his application for a Frye hearing, petitioner submitted, among other things, Singer’s affidavit, scientific literature in the form of professional articles discussing the controversial nature of PNOS (nonconsent) — the predecessor diagnosis of OSPD (nonconsent) — and questioning its general acceptance in the relevant scientific community, as well as various trial court decisions that, following Frye hearings, have concluded that OSPD (nonconsent) is not a generally accepted diagnosis within the relevant psychiatric and psychological communities. In opposition, respondent tendered an attorney’s affidavit and three trial court decisions — two of which concluded that no Frye hearing was necessary — but no scientific literature or professional affidavits. Although we recognize that OSPD is a defined and recognized diagnosis in the Fifth Edition of the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM) and that the Court of Appeals has recognized that PNOS — OSPD’s predecessor diagnosis — is sufficient to support a finding of mental abnormality (see State of New York v Shannon S., 20 NY3d 99, 107 [2012], cert denied 568 US 1216 [2013]), we note that Shannon S. did not determine the issue presently before us, i.e., whether the OSPD (nonconsent) diagnosis has received general acceptance in the psychiatric and psychological communities … . * * *

… [G]iven the controversial nature of the OSPD (nonconsent) diagnosis, on the record before us, we conclude that Supreme Court’s denial of petitioner’s application for a Frye hearing was improper. Accordingly, we remit this matter to Supreme Court to conduct a Frye hearing, addressing the question of whether the diagnosis of OSPD (nonconsent) has achieved general acceptance in the psychiatric and psychological communities … . Matter of Miguel II. v State of New York, 2018 NY Slip Op 07210, Third Dept 10-25-18

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL CONFINEMENT, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/FRYE HEARING (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))

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WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction which stemmed from a violation of an order of protection, determined that the emergency exception to the warrant requirement did not apply and her motion to suppress should have been granted. The order of protection directed defendant to stay away from Thomas Collins. The police officer, Carmichael, after entering defendant’s apartment without permission, found Collins hiding there:

We conclude that Carmichael’s testimony established that there was not an objectively reasonable basis for him to believe that there was an ongoing emergency in defendant’s apartment that required immediate assistance to protect life or property. Carmichael was aware that defendant was no longer incarcerated. There was no evidence that defendant’s apartment had been forcibly entered, nor was there any other indication of an ongoing crime or emergency. The low, muffled sound that he heard and the faint light that was seen through the window were consistent with an occupant watching television, a reasonable activity at that hour of night. Moreover, Carmichael’s testimony further established that the police may have been motivated to search defendant’s apartment by the possibility of locating Collins there and arresting him. Carmichael confirmed that he was aware that there was an outstanding warrant for Collins’ arrest. The police had been advised that Collins had been seen in the vicinity of defendant’s apartment during the evening in question, and they considered the possibility that he was at her apartment in violation of the order of protection. After Carmichael handcuffed defendant, he reported by radio to the other officers on the scene that he had detained the “female subject,” and, when he located Collins, he stated that he had detained “that other subject.”

Further, even had Carmichael’s initial entry been lawful, his subsequent search of defendant’s apartment was not. A protective sweep is justified only when the police “have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene” … . Upon entry, Carmichael found that the apartment was occupied by defendant — known by him to be the tenant entitled to occupy the apartment — who told him that she was watching television, denied that anyone else was present and made no request for assistance. Thus, the facts known to Carmichael did not reasonably support the belief that there was any danger to himself or to defendant. People v Sears, 2018 NY Slip Op 07197, Third Dept 10-25-18

CRIMINAL LAW (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/SUPPRESS, MOTION TO, (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))

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PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT).

The Third Department, reversing defendant’s assault and criminal possession of a weapon convictions, determined that the People did not disprove the justification defense in this nonjury trial:

At sentencing, County Court stated that it rejected defendant’s justification defense because it found that defense to be inconsistent with the multiple wounds on the victim’s face, neck and body. However, “independently assess[ing] all of the proof” and considering the correctness of the court’s factual determinations in the role of a second factfinder, as we must, we do not agree that these injuries are inconsistent with defendant’s assertion that he had to swing the knife repeatedly to defend himself, as the victim continued to attack and punch him … . More significantly, the severity of the victim’s injuries does not provide the missing proof that defendant could have retreated with complete safety before he used deadly physical force or even during the knife fight, when he and the victim both testified that the victim continued to throw punches. It was the People’s burden to prove “to the same degree as any element of the crime charged” that defendant’s actions were not justified … . Exercising our factual review power and viewing the evidence in a neutral light, we find that the People did not do so … . People v Hernandez, 2018 NY Slip Op 07196, Second Dept 10-24-18

CRIMINAL LAW (PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, JUSTIFICATION, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/JUSTIFICATION (CRIMINAL LAW, EOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, NONJURY TRIAL, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))

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THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, over a dissenting opinion, determined that the arbitrator-panel (JAMS) did not have the power to reconsider its initial finding (called a partial final award or PFA) that the $10 million settlement paid by Allied was not a “loss” within the meaning of the insurance policy issued to Allied by AISLIC. The parties had agreed to first decide whether the settlement constituted a “loss” and then determine the applicable costs stemming from the insured’s defense of the claim against it.  The First Department held that the arbitrator-panel did not have the authority to reconsider the initial PFA and reverse itself (finding that the settlement did actually constitute a “loss”) in the course of considering the defense and indemnification issues:

Here, when the panel reconsidered the PFA, it exceeded its authority based on the common law doctrine of functus officio. The doctrine of functus officio provides that absent an agreement to the contrary, after an arbitrator renders a final award, the arbitrator may not entertain an application to change the award, “except … to correct a deficiency of form or a miscalculation of figures or to eliminate matter not submitted”(…CPLR 7509; CPLR 7511[c]). “In order to be final,’ an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them” … . “Generally, in order for a claim to be completely determined, the arbitrators must have decided not only the issue of liability of a party on the claim, but also the issue of damages” … .

However, “the submission by the parties determines the scope of the arbitrators’ authority” … . Thus, “if the parties agree that the [arbitration] panel is to make a final decision as to part of the dispute, the arbitrators have the authority and responsibility to do so . . . [and] once [the] arbitrators have finally decided the submitted issues, they are, in common-law parlance, functus officio,’ meaning that their authority over those questions is ended” … . American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 2018 NY Slip Op 07194, First Dept 10-25-18

ARBITRATION (THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/INSURANCE LAW (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/CIVIL PROCEDURE (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))/FUNCTUS OFFICIO (ARBITRATION, THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT))

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COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT).

The First Department noted that Supreme Court did not have the authority to, sua sponte, vacate its prior decision and order and reinstate a 2014 judgment. The motion papers did not request any relief that could be the basis of the court’s action:

“[A] trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment” … . Although “a court may grant relief[] pursuant to a general prayer contained in the notice of motion . . . ” … , no such clause was contained in plaintiff’s notice of motion. In the absence of any cross motion from the defendants, or any other kind of request for vacatur of the court’s prior order decision and prior order and reinstatement of the prior judgment, the court erred in doing so on its own initiative. Howell v City of New York, 2018 NY Slip Op 07178, First Dept 10-25-18

CIVIL PROCEDURE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/SUA SPONTE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/JUDGES (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))

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DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant property owner’s (Reda’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was a question of fact whether the area where plaintiff fell was in a designated bus stop, where the city would be responsible, or in an area the NYC Administrative Code requires that defendant maintain:

Plaintiff alleges that she tripped and fell over a gap between flagstones on a public sidewalk abutting property owned by Reda, and south of a bus shelter maintained by defendant City. Under Administrative Code of City of NY § 7-210, an abutting property owner has a duty to maintain the public sidewalk … , but the City continues to be responsible for maintaining any part of the sidewalk that is “within a designated bus stop location” … .

In support of her motion for summary judgment, Reda submitted evidence, including photographs showing where plaintiff fell near a bus shelter and next to a yellow-marked curb, and the City’s admission that it owns the bus stop pole shown in a photograph. However, absent any applicable statute or any evidence defining the parameters of a bus stop, a triable issue of fact exists as to whether the part of the sidewalk where plaintiff fell is within a designated bus stop that the City is required to maintain … . McCormick v City of New York, 2018 NY Slip Op 07175, First Dept 10-25-18

NEGLIGENCE (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/MUNICIPAL LAW (SIDEWALKS, BUS STOP, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SLIP AND FALL (MUNICIPAL LAW, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))/BUS STOPS (MUNICIPAL LAW, SLIP AND FALL, DEFENDANT PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, QUESTION OF FACT WHETHER AREA WHERE PLAINTIFF FELL WAS THE PROPERTY OWNER’S RESPONSIBILITY UNDER THE NYC ADMINISTRATIVE CODE OR THE CITY’S RESPONSIBILITY AS PART OF A BUS STOP (FIRST DEPT))

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REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff had the statutory right to bring an action to cancel of record certain assignments of mortgage:

The Supreme Court should not have granted those branches of the separate motions of the defendants, which were pursuant to CPLR 3211(a) to dismiss the causes of action to cancel of record the subject assignments of mortgage insofar as asserted against each of them on the ground that the plaintiffs lacked standing. Real Property Law § 329 provides that “[a]n owner of real property . . . may maintain an action to have any recorded instrument in writing relating to such real property . . . other than those required by law to be recorded . . . declared void or invalid, or to have the same canceled of record as to said real property.” The plaintiffs, as owners of the subject property, have standing under Real Property Law § 329 to challenge the recorded assignments and seek to have them removed as a cloud on their title … . Silverberg v Bank of N.Y. Mellon, 2018 NY Slip Op 07167, Second Dept 10-24-18

REAL PROPERTY LAW (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))/FORECLOSURE (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))/ASSIGNMENTS OF MORTGAGE (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))

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DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).

The Second Department determined there defendant was not given the opportunity to be heard on whether he should be designated a sexual predator and deleted the designation:

… [T]he Supreme Court erred in, sua sponte, designating the defendant a sexual predator. Neither the Board of Examiners of Sex Offenders nor the People had recommended such a designation, and the defendant was never afforded an opportunity to be heard on the issue of whether he should be so designated (see Correction Law § 168-n[3]…). Accordingly, we modify the order so as to delete the provision thereof designating the defendant a sexual predator. People v Medina, 2018 NY Slip Op 07162, Second Dept 10-24-18

CRIMINAL LAW (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEXUAL PREDATOR (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))

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